SZCSX v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 520

FEDERAL COURT OF AUSTRALIA

SZCSX v  Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 520

PRACTICE & PROCEDURE – application for leave to appeal interlocutory decision of Federal Magistrate – Federal Magistrate required applicant to file amended application – original application raised matters that could go towards jurisdictional error – requirement possibly a matter of practice in Federal Magistrates Court – any such practice should be discontinued.

SZCSX V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 288 OF 2005

MADGWICK J
27 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 288 OF 2005

BETWEEN:	SZCSX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	27 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the respondent’s costs, assessed in the amount of $800.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 288 OF 2005

BETWEEN:	SZCSX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	27 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application for leave to appeal from a judgment of Federal Magistrate Nicholls although, in the application, the judgment is wrongly said to be that of Federal Magistrate Driver.  The judgment in question was given on 1 February 2005. 

2. The applicant has not appeared today and Ms Burnett for the Minister asks that I nevertheless proceed to deal with this application in his absence.  I see no reason not to do this:  the applicant was informed by the Court of the hearing date and further reminded of it by letter from the respondent’s solicitors enclosing a copy of their submissions.

3. There is one aspect of concern about this matter.  The application to the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was adverse to the applicant.  Evidently unrepresented, the applicant gave his particulars as follows:

   ‘(a)The Tribunal did not provide the applicant with particular of information to the applicant in the Australian Embassy reports or any other adverse material which formed part of the reasons of the Tribunal decision;

   (b)The Tribunal did not put to the applicant [its] doubts about documents containing information personal to the applicant from Pakistan Muslim League and those doubts formed part of the reason for the Tribunal’s decision;

   (c)The Refugee Review Tribunal did not complete the exercise of its jurisdiction as it made no finding as to what socio-political changes might occur in Pakistan in the reasonably foreseeable future and it thus failed to assess whether the applicant's fears of being persecuted [as] a member of a political party were well founded in the reasonably foreseeable future.’

4. In accordance with what is apparently a practice in the Federal Magistrates Court, while the applicant was unrepresented and apparently in need of interpretation assistance (which was provided to him), when the matter was first listed for directions, the Court made consent orders as follows:

   ‘2.The applicant file and serve an amended application giving full particulars of each ground of review relied upon by 2 September 2004;

   3.After the date for the filing of an amended application the respondent may file a summary dismissal application which is to be given a return date by the registry upon filing.’

5. No amended application was filed and the respondent sought an order from the Federal Magistrates Court that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules. Rule 13.03(1) provides:

   ‘This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.’

6. Rule 13.03(2)(b) empowers the Court to make an order ‘to end the proceeding or dismiss a response’.

7. The learned Federal Magistrate, it appears, was actuated, at least in part, by the failure to file an amended application and by the fact that ‘no acceptable explanation was offered’ for the failure to file such an application.

8. If the practice to which I have referred, involves requiring an applicant to file an amended application when he has already filed an original application which could pass muster, given the usual generosity of Courts to litigants in person, that practice ought not, in my view, be continued.  With a modicum of goodwill one can see that the person who drafted the application for the applicant – very unlikely to have been himself – was seeking to raise matters that could go to jurisdictional error.  The first two concern, plainly enough, alleged denials of natural justice and the third was suggesting, in effect, that the Tribunal had not appreciated its duty to consider matters into the reasonably foreseeable, as distinct from the actually imminent, future. 

9. If that were all, I should be inclined, indeed, to grant leave to appeal.  However, when the applicant addressed his Honour it appears that his own complaints did not match those of the person who drafted the application in the Magistrates Court.  His complaint, namely that ‘the Tribunal did not ask him to provide any evidence’, was patent nonsense, as the learned Federal Magistrate showed.  As his Honour said:

   ‘The applicant was represented and had every opportunity to provide whatever type of information he felt, or his adviser felt was relevant to his claims to the Tribunal.  The Tribunal is not obliged to make the case for the applicant.  He had assistance and he had opportunity to fully support his claims.’

10. Otherwise it appears that, as his Honour put it, he was merely ‘looking to the Court as an opportunity to re-hear his refugee claims’ and ‘to provide new material relating, he said, to a friend who had returned to Pakistan recently and had been murdered’.  Even so, as his Honour remarked, ‘The applicant was unable to show how this was directly relevant to his claims’.  It is clear, as is very commonly the case, that the applicant had quite mistaken the nature of what is necessary to move a court to grant judicial review of a Tribunal decision. 

11. Thus, as an independent ground for dismissing the application his Honour said:

    ‘I [can] see no utility, in all the circumstance, to giving the applicant more time to file an amended application.’

12. In other words, to continue the proceedings would have been futile.  Thus, the decision was justified by the consideration that the applicant’s case was quite hopeless.  Even if his Honour were in error for not having articulated that matter adequately so that the applicant would have had an opportunity to deal with it as such, the plain fact is that, if leave to appeal were granted, it would be to grant leave to continue a proceeding that is quite futile as having no reasonable prospect of success, in the sense that there is no sensible argument that can apparently be put with a view to invalidating the Tribunal’s decision.

13. In these circumstances, I am not inclined to grant the leave sought.

14. The application is dismissed and the applicant is to pay the respondent’s costs, assessed in the sum of $800.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             5  May 2005

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 April 2005
Date of Judgment:	27 April 2005