SZGIY v Minister for Immigration and Citizenship
[2007] FCA 1543
•4 October 2007
FEDERAL COURT OF AUSTRALIA
SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543
SZGIY v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1348 OF 2007ALLSOP J
4 OCTOBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1348 OF 2007
BETWEEN:
SZGIY
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
ALLSOP J
DATE OF ORDER:
4 OCTOBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to appeal from the orders 2, 3 and 4 of the Federal Magistrates Court dated 9 July 2007.
2.The notice of appeal be filed on or before 19 October 2007.
3.The costs of the application for leave to appeal be costs of the appeal.
4.The appeal hearing be expedited.
THE COURT NOTES THAT:
5.The parties are in agreement that the matter is appropriate for Full Court.
THE COURT DIRECTS THAT:
6.The matter be referred to the Sydney list judge for allocation of a hearing date.
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 1348 OF 2007
BETWEEN:
SZGIY
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
ALLSOP J
DATE:
4 OCTOBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from orders made by the Federal Magistrates Court on 9 July 2007. The leave to appeal is sought from orders 2, 3, and 4 of the orders made on that day. I have had the benefit of full argument on the leave application from counsel for the Minister and counsel for the applicant. It is not appropriate that I express concluded views about the magistrate's decision, other than in respect of a small number of matters.
The learned Federal Magistrate made orders and delivered his reasons extempore on 9 July 2007, which was three days before the Full Court of this Court handed down the decision in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565. In that decision, s 477 of the Migration Act 1958 (Cth) (the “Act”) was interpreted such as to require actual notification of the applicant, by physical delivery of a written statement of the reasons of the Tribunal to the applicant personally, before the time limit started to run. The learned Federal Magistrate approached one aspect of the decision that he had to make on a view contrary to that interpretation and, as a result, he found the 2007 application filed by the applicant incompetent.
It is common ground, counsel informed me today, that on the assumption I must make that SZKKC 159 FCR 565 correctly states the law and the intention of Parliament, that the Federal Magistrate was wrong in that conclusion and that the 2007 application was not incompetent.
I have not yet set out, and I do not propose to set out in detail, the history of this matter, other than to say that there was a Tribunal decision in 1999 at a time when s 424A of the Act was applicable. No application was brought by the applicant in respect of that decision until 2005. That application was withdrawn shortly prior to being heard in the same year. The applicant has now, in 2007, sought to bring another application, being the so-called 2007 application, as well as a motion in the 2005 proceedings seeking to dissolve the discontinuance that disposed of that proceeding. If the dissolution of the withdrawal and discontinuance was successful, the 2007 proceeding would be unnecessary. Thus, one can see there is a clear relationship between the two applications.
Though the Federal Magistrate's conclusion of the incompetence of the 2007 application was wrong, it has been submitted to me that I should not grant leave to appeal because the ultimate application for review is hopeless, on the basis of the reasons expressed by the Federal Magistrate. It is also said that I should take into account the long delay that was discussed by the Federal Magistrate in my assessment as to the likely prospects of success in relation to the s 424A argument.
The path of any argument for the invocation of error based on s 424A of the Act is very rarely such as to enable confident views of hopelessness to be reached. The Federal Magistrate, in a helpful and reasoned set of paragraphs, has come to the view that the s 424A argument would fail. I do not propose to dissect his Honour's reasons and to play the role of the Full Court. It is sufficient for me to say at this level that his Honour may be right, but the matter at one level is capable of reasonable argument.
The purposes of section in question and the interrelated operation of paragraph (3)(b) and the notions of adoption of prior information into the information given for the purpose of the review tribunal hearing are replete with complexities and almost philosophical distinctions that have been brought about since 2005, since the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 . That is not intended as any criticism of that decision. It is not my place to do so. But the fact is that the Federal Court, through a number of Full Court decisions, has sought faithfully to apply SAAP 215 ALR 162 into the construct of a complex statute and the resulting jurisprudence can be seen as less than pellucid. I am not prepared to come to the view that a Full Court, instructed by and assisted by counsel's argument, could not find error in his Honour's reasons. For that reason I think leave should be given in relation to the orders in so far as they affect the 2007 application.
The 2005 application has an independent life, in that an application was brought some six years after the decision. There was a previous form of s 477 dealing with time limits, but it was one based on the privative clause application. The Full Court in SZKKC 159 FCR 565 has dealt with the new form of s 477 as amended by Parliament, no doubt in an attempt to solve previous flaws in s 477 brought about by the application of the High Court's decision in Plainitff S157/2002 v Commonwealth (2003) 211 CLR 476. Nevertheless, looking at the reasons of the learned Federal Magistrate, one can see a perfectly understandable emphasis on the delay and a perfectly understandable emphasis on the voluntary withdrawal by the applicant of the 2005 application. However, I do not think that the learned Federal Magistrate's reasons are such as can be said that there are no reasonable prospects of success on a challenge to the exercise of discretion that his Honour made. Part of that may be seen by reference to viewing the facts within a different framework, that of s 477 as it currently stands, and also some of the reasons the learned Federal Magistrate, as expressed, may be open to challenge, or at least debate, before a Full Court. That is not said critically of the Federal Magistrate, but I do not think that it is self-evident that in the circumstances his exercise of a discretion is without challenge.
Given that the consequence of the exercise of discretion of the Federal Magistrate is that the application in relation to the challenge to the Tribunal's decision will never be ventilated, and given that there is a relationship as yet unargued between the Federal Magistrate's error in relation to the 2007 application and the consequences upon the 2005 application, I think, in all the circumstances, that I am prepared to grant leave in relation to the 2007 application I should also grant leave in relation to the 2005 application. It may be that a Full Court takes the view that they are clearly independent and that the matters can be dealt with separately, but for present purposes I think leave should be granted or refused to the orders made in so as far as they affect both applications.
For those reasons the orders of the court are:
The Court Orders that:
(1)Leave be granted to the applicant to appeal from the orders 2, 3 and 4 of the Federal Magistrates Court dated 9 July 2007.
(2)The notice of appeal be filed on or before 19 October 2007.
(3)The costs of the application for leave to appeal be costs of the appeal.
(4)The appeal hearing be expedited.
The Court notes that:
(5)The parties are in agreement that the matter is appropriate for Full Court.
The Court directs that:
(6)The matter be referred to the Sydney list judge for allocation of a hearing date.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 25 October 2007
Counsel for the Applicant: Mr S Prince Counsel for the Respondent: Mr G Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 October 2007 Date of Judgment: 4 October 2007
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