SZKHU v Minister for Immigration and Citizenship

[2007] FCA 1149

FEDERAL COURT OF AUSTRALIA

SZKHU v Minister for Immigration and Citizenship [2007] FCA 1149

SZKHU v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNAL

NSD 675 OF 2007

LINDGREN J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 675 OF 2007

BETWEEN:

SZKHU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal from the Federal Magistrates Court of Australia be granted.

2.The appeal be allowed.

3.The orders made in the Federal Magistrates Court of Australia on 2 April 2007 be set aside.

4.The matter be remitted to the Federal Magistrates Court of Australia for determination according to law.

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 675 OF 2007

BETWEEN:

SZKHU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia given by Federal Magistrate Driver on 2 April 2007:  see SZKHU v Minister for Immigration [2007] FMCA 463. By an application filed in the Federal Magistrates Court of Australia on 6 March 2007, the applicant sought review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of the delegate of the first respondent (the Minister) not to grant a Protection visa to the applicant. The Tribunal’s decision was made on 11 February 2003 and was handed down on 4 March 2003.

2. The Minister’s response to the application filed in the Federal Magistrates Court objected that that Court lacked jurisdiction to hear the application: see rule 44.06(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).  Driver FM upheld the objection to jurisdiction on the basis that the application was out of time.  At that time the decision of the Full Court of this Court in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (SZKKC) had not been given.  That decision was given on 12 July 2007.

3. Ms Nanson, the solicitor who represents the Minister today, accepts that the Federal Magistrate’s decision cannot, in the light of SZKKC, be sustained on the ground that his Honour gave.  Ordinarily this would mean that the order should be set aside and the matter remitted to the Federal Magistrates Court.  Ms Nanson has asked, however, that I not take that step but that I dismiss the present application for leave to appeal on the ground that it would be futile to remit the matter to the Federal Magistrates Court.  She points out that the applicant did not appear before the Tribunal.

4. In order to follow the course contended for by Ms Nanson, I would apparently have to place myself in the position of a Federal Magistrate hearing a show cause application under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) and determine that on the facts the applicant had no arguable case for the relief claimed: see rule 44.12(1)(a). I indicated my reluctance to assume that role. There were not before Driver FM any written submissions and there are none before me today. The matter had not reached the stage in the Federal Magistrates Court where written submissions were called for. Driver FM dismissed the application on the apparently straightforward ground that it was simply out of time. The merits of the application have not yet been considered at all, and the legislature’s intention is that the application be considered at first instance by the Federal Magistrates Court.

5. As events have transpired, inquiries reveal that Federal Magistrate Barnes, who is the Duty Federal Magistrate today, is in a position to hear the parties today.

6. I will make an order setting aside the orders of the Federal Magistrates Court and remitting the matter to that Court.

7. It should not be thought that it will be possible in all cases to follow the expeditious course being taken in this case. A combination of circumstances have made this desirable, in particular, the desire of the solicitor for the Minister still to submit that the application should be dismissed under rule 44.12(1)(a) on the ground that the applicant has no arguable case for the relief claimed, and the fortuitous availability of a Federal Magistrate today at short notice to hear the parties in this building.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        6 August 2007

The Applicant appeared in person.
Solicitor for the Respondent:	Ms A Nanson, Australian Government Solicitor
Date of Hearing:	3 August 2007
Date of Judgment:	3 August 2007