SZDVJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 620

FEDERAL COURT OF AUSTRALIA

SZDVJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 620

SZDVJ AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURALISM AND INDIGENOUS AFFAIRS
NSD 1639 OF 2004

ALLSOP J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1639 of 2004

BETWEEN:

SZDVJ
FIRST APPLICANT

SZDVK
SECOND APPLICANT

SZDVL
THIRD APPLICANT

SZDVM
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

13 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file an application for leave to appeal be dismissed.

2.The applicant husband/father, that is, Applicant SZDVJ, be named guardian and next friend of the applicant children for the purpose of this application.

3.The applicant husband/father, that is Applicant SZDVJ, pay the respondent’s costs of the application.

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	NSD 1639 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZDVJ
FIRST APPLICANT

SZDVK
SECOND APPLICANT

SZDVL
THIRD APPLICANT

SZDVM
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	ALLSOP J
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 12 October 2004, a Federal Magistrate dismissed the application of the four applicants under s 39B of the Judiciary Act 1903 (Cth), under Rule 13.10(a) of the Federal Magistrates Court Rules 2001. Other orders dealing with costs were made.

2. The applicants, husband and wife and two children, are citizens of India.  The orders that were made by the learned Federal Magistrate dealt with the appointment as litigation guardian of the first applicant in respect of the children.  The various applicants, being the husband, wife and two children, sought by application in this Court, leave to appeal.  That application was defective having been made on 10 November 2004.  It required an extension of time for leave to appeal.

3. The orders of the Federal Magistrate were interlocutory. They did not and do not finally dispose of the issues between the parties. What the learned Federal Magistrate did was to dismiss the application on the basis of the Rule 13.10(a), which provides as follows:

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
              (a)       no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; …

4. The applicants sought relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 27 April 2004 and handed down on 19 May 2004. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the applicants.

5. The grounds for review of that decision were set out by the learned Federal Magistrate in paragraph 5 of his reasons: 

   1.That s 61 of the Australian Constitution imposes on the respondent and inexcludable requirement of due process including procedural fairness.

   2.That s 424 (3) (a) of the Migration Act is in breach of the requirement of due process and therefore ultra vires s. 61 of the Australian Constitutions.

   Particulars

   The Tribunal erred in the degree of weight it attributed to unstead “independent Country Information”.

   The Tribunal erred in having regard to selected “Independent country Information” in circumstances where country files in their entirety held by the respondent are not available to the applicant.

6. It need be noted that in the application before the Federal Magistrate it seems there appears a typographical error in so far as the constitutional validity of s 424(3)(a) is pleaded not the constitutional validity s 424A(3)(a). The latter would seem more pertinent. The confusion is somewhat relieved by reference to the affidavit in support of the application to this Court at [1(a)] at which the applicants plead the constitutional invalidity of s 424A(3)(a). I have proceeded on the basis that this was the initial intention of the applicants, especially so in light of my view that the discrepancy produces no disadvantage to either party.

7. It is important to understand the limits of what was argued or sought to be argued in the application.  The learned Federal Magistrate divided into two parts to these grounds of review and, in my respectful view, correctly analysed the application in the way he did.

8. First, he saw that there was an expressed constitutional issue sought to be raised about the content of s 61 of the Constitution, and whether s 424A(3)(a) of the Migration Act 1956 (Cth) was constitutionally valid in the light of the terms and content of s 61 of the Constitution.

9. It will be recalled that s 424A(3)(a) deals with what might be called country information.  It is not as happily drafted as it might have been.  However, the jurisprudence in the Full Court of this Court is now clear (it had not been for a time) that s 424A(3)(a) means that country information need not be specifically disclosed to the applicant. However, assuming that natural justice, that is procedural fairness, requirements still apply, that does not mean that the applicant can be left in the dark about important issues thrown up by country information.  I say that because that is relevant to the second aspect of the application before the Federal Magistrate.

10. The second part of the application was an assertion that there had been a failure to accord procedural fairness in two respects, as set out in the particulars to the application.  That is, that the Tribunal had erred in the degree of weight it had attributed to country information, and secondly, the Tribunal erred in having regard to selected country information in circumstances where country information files in their entirety held by the respondent were not made available to the applicant.

11. The Federal Magistrate, of course, as with any other Court in this country, was bound by s 78B of the Judiciary Act, and the necessity to issue notices in respect of Constitutional issues.   However, the application proceeded before him and was dealt with entirely by him on the basis that even if it be the case that there was a difficulty with s 424A(3)(a) for the reasons claimed there had been no jurisdictional error in dealing with the country information as the Tribunal had.  That is, the Federal Magistrate in his reasons rejected as untenable the proposition that all country information must necessarily be provided to an applicant.  With that conclusion I respectfully agree.  That is, I agree that such argument was untenable.

12. The Federal Magistrate referred to parts of the decision of McHugh J in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966; 190 ALR 601 and to the decisions of the Full Court in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559, NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141, for the proposition that what was required of the Tribunal was to fairly relate the substance of matters in respect of which it considered the applicant should answer, and which were important to its dealing with the claims of the applicant.

13. The learned Federal Magistrate in his careful reasons made clear, as a reading of the Tribunal decision does make clear, that it appears that the substantive issues from the country information, which were relevant to the Tribunal’s decision, were put to the applicants.  The submissions before the learned Federal Magistrate do not deny such a proposition.  Rather the submissions on the question of procedural fairness and the terms of the application contended that the applicants were entitled to the totality of the text of the country information, and that there was an error in selection and weight given to the country information.

14. In those circumstances, on the submissions put before the learned Federal Magistrate, I am unable to identify any error of substance or otherwise in the way the learned Federal Magistrate came to the view that the claim was untenable. In the light of that ruling it was unnecessary for the Federal Magistrate to begin to deal with the Constitutional questions in respect of which there had been no s 78B notice issued.

15. The conduct of this matter in this Court should be identified.  As I said, an application for leave to appeal was filed.  The Minister, if I may say so, perfectly properly does not take issue with the time period alone, should I be of the view that there was an error in the approach of the learned Federal Magistrate.  I will treat the application as one for an extension of time for leave to appeal.

16. In support of that application, there was filed an affidavit of the solicitor acting for the applicants, which reiterated in the affidavit filed with the application the claim as to the constitutional invalidity of s 424A(3)(a) together with an assertion that there was a constructive failure to exercise jurisdiction.  In support of that in this affidavit, there was an assertion made that the Tribunal failed to accord procedural fairness to the applicant because the Tribunal failed to put to the applicant for comment its adverse findings in respect of the evidence of the applicant's case and, in particular, its findings that those supporting documents and evidence were fabricated or contrived.

17. Mr Patel, counsel appearing for the applicants, was unable to point to any part of the Tribunal's reasons where findings of fabrication or contrived documentation were made.  I have been unable to do so.  None has been identified.  It would appear that this part of the affidavit was in error and perhaps confused with another matter.

18. The balance of that affidavit does not helpfully assist in identifying why the Federal Magistrate reached the conclusion he did in relation to the arguments put before him in relation to procedural fairness.  In support of the application, there was also filed on 6 April, an affidavit of the same solicitor who explains the question of time and why the matter was out of time.  For the reason I have earlier referred to, I need not dwell on the question of time.

19. Also filed in April were detailed submissions and a draft notice of appeal.  Those documents directed themselves to matters, which were not argued before the learned Federal Magistrate, but I will, in a moment, deal with them in any event.

20. Before dealing with them I should say this. The Federal Magistrate was exercising a discretion based on the apparent untenability of the application as framed. That is how the learned Federal Magistrate approached the matter; that is how he was asked to approach the matter on the day, both by the moving party and the respondent. In those circumstances, it is always difficult to identify a legal error in the approach of an interlocutory application when matters are not put to the judicial officer hearing the matter. That is not to say that there may be difficulties or jurisdictional error with the way the Tribunal dealt with the matter that can be, in due course, ventilated if they are sufficiently clear and tenable. However, I am dealing with the exercise of the Federal Magistrate’s discretion to apply Rule 13.10(a) on this application.

21. In submissions filed by the respondent, drafted by Ms Watson on behalf of the respondent, the position of the respondent is made clear in respect of this application. 

22. I will now deal with the amended draft notice of appeal.  Ground 1(a) of that amended notice of appeal is an assertion that the learned Federal Magistrate failed to hold that the decision of the Tribunal involved a jurisdiction error in misconstruing the evidence of the applicant.  The particulars given of this were that the Tribunal erroneously construed the evidence of the applicant as belonging to a terrorist organisation in Bawar Khalsa when, in fact, the appellant was a member of the Akali Dal Party.

23. In the submissions of the respondent, it is pointed out that this is an attack on a finding of fact and could not have constituted a ground of review before the Federal Magistrate and nor was it raised before him.  It is pointed out in the submissions that the Tribunal set out in full the applicant's original claims which included a statement that he and his family members were active in the Khalsa movements, and at page 11 of the Tribunal decision, it was noted that it discussed his claim with the applicant.

24. These matters would support the conclusion that there was not in this finding such a degree of irrationality or a degree of mistake, which would conceivably allow one to conclude that the Tribunal had misunderstood its task or acted capriciously.

25. The second ground of appeal, ground 1(b), was another assertion of a misconstruction of the evidence by the Tribunal, which the learned Federal Magistrate should have appreciated.  This was to the effect that the Tribunal erroneously construed the grounds of the applicants’ basis of fear of persecution as personal instead of belonging to the political organisation, the Akali Dal Party. 

26. As pointed out in the respondent's submissions, at page 12 of the Tribunal decision the Tribunal discussed the claim of the applicant and put to the applicant at page 16 of the its reasons that his problems were not politically based.  At page 17 of the Tribunal's reasons, it can be seen that the Tribunal discussed with the applicant that the Akali Dal Party was in power when certain actions by the authorities occurred, which he complained about. At page 19 of the decision the Tribunal found that the male applicant's father had been able to successfully utilise the legal system during the time that the Akali Dal Party was in power, and that the family was being provided with effective protection.  At page 20 of the reasons, the Tribunal accepted that the applicant and his family were active supporters of the Akali Dal Party. At page 21, the Tribunal found that the threats made to the applicants’ family were not based on a Convention reason, but due to an ongoing feud between two families.  As the Tribunal found, the Tribunal did not misconstrue the applicant's claimed basis of fear.  Rather it rejected it.  This is not a jurisdictional error nor does it display, even if it had been put to the Federal Magistrate, a rational basis to conclude that there was a tenable claim based on that complaint.

27. Grounds 2(a) and 2(b) appear to be repetitions of grounds 1(a) and 1(b), in that they assert that the learned Federal Magistrate erred in failing to hold that the decision of the Tribunal did not constitute jurisdictional error because it misconstrued the evidence of the applicants in the same two respects. 

28. The third ground in paragraph 2(c) is an assertion that the Federal Magistrate or the Tribunal, it is not clear and failed to afford procedural fairness to applicants. 

29. The learned Federal Magistrate dealt with the assertions put before him of a failure to accord procedural fairness to the applicants by the Tribunal.  There is no other apparent ground to conclude that a claim was being made that some other aspect of the Tribunal's procedures were unfair.

30. To the extent that 2(c) can be taken as a complaint that the learned Federal Magistrate denied procedural fairness, there is an inadequate foundation, indeed an entire lack of foundation, for that in the evidence.  I am not prepared to find on the material put before me that there was any failure to accord procedural fairness in the Federal Magistrate's hearing.  The outline of submissions filed by the applicants on 26 April 2005 dealt in detail with the facts of the Tribunal decision.   They do not take the matter beyond the elements of the draft amended notice of appeal that I have dealt with. 

31. As I have earlier said, a more fundamental problem for the applicants in this Court is that most of the draft notice of appeal and outline of submissions filed on the 6 and 26 April respectively were not put to the learned Federal Magistrate.  They do not appear, to me, to be matters which the Federal Magistrate should have appreciated as conceivably founding an argument for jurisdictional error: first, because they were not in the application; secondly, because they were not put to him; and thirdly, because of their underlying lack of apparent merit as I have sought to indicate.

32. For those reasons, I see no basis for the success of any appeal which would seek to assert that the Federal Magistrate erred in any respect in dealing with the matter as he did before him under Rule 13.10(a) of the Federal Magistrates Court Rules. In those circumstances, the application for an extension of time in which to file an application for leave to appeal is dismissed on the basis that the application for leave to appeal would not have any prospects of success and, therefore, the orders of the Court today are that the application for an extension of time in which to file an application for leave to appeal be dismissed.

33. As to costs, there are four applicants.  I have not made orders in relation to the two children.  To the extent it is necessary, I make an order that the applicant husband father, that is, SZDVJ, be made guardian or next friend for the children for the purposes of these proceedings, and finally I order that applicant SZDVJ be ordered to pay the costs of the respondent to the application.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             18 May 2005

Counsel for the Applicant:	Mr J M Patel
Solicitor for the Applicant:	Mr J Bharati
Counsel for the Respondent:	Mr A Markus (Slr)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005