SZKNT v Minister for Immigration and Citizenship
[2008] FCA 950
•28 May 2008
FEDERAL COURT OF AUSTRALIA
SZKNT v Minister for Immigration and Citizenship [2008] FCA 950
SZKNT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2353 of 2007
GRAHAM J
28 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2353 of 2007
BETWEEN:
SZKNT
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
28 MAY 2008
WHERE MADE:
SYDNEY
THE COURT:
1.Orders that the time for filing and service of a Notice of Appeal be extended up to and including 28 May 2008.
2.Orders that the draft Notice of Appeal, a copy of which is attached to these orders, be taken to have been filed in Court by the applicant as the requisite Notice of Appeal.
3.Orders that the appeal be allowed.
4.Orders that the orders of Federal Magistrate Lloyd-Jones of 25 October 2007 be set aside.
5.Orders that a writ of certiorari be issued to the Refugee Review Tribunal quashing the decision of the Refugee Review Tribunal of 12 March 2007
6.Orders that a writ in the nature of mandamus issue to the Refugee Review Tribunal requiring it to determine the application for review of the Minister’s delegate’s decision of 11 November 2006, lodged with the Tribunal on 8 December 2006, according to law.
7.Orders that the respondent Minister pay the costs, if any, of the applicant of the application filed 23 April 2007 in the Federal Magistrates Court of Australia.
8.Makes no order as to costs in respect of the application filed 25 February 2008 or the Notice of Appeal taken to have been filed today.
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 2353 of 2007
BETWEEN:
SZKNT
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
28 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 24 October 2006 the applicant, who is identified for the purposes of these proceedings as ‘SZKNT’, filed an application for a Protection (Class XA) visa. That application included a signed statement by the applicant recording his reasons for claiming to be a refugee.
On 11 November 2006, the Minister’s delegate decided that the application for a protection visa should be refused.
On 8 December 2006 the applicant applied for review of the Minister’s delegate’s decision by the Refugee Review Tribunal (‘the Tribunal’). He was invited to attend a hearing before the Tribunal on 23 January 2007 and duly did so. On 12 March 2007 the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) and that decision was handed down on 3 April 2007.
The applicant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal’s decision. On 22 August 2007, the application was heard by Federal Magistrate Lloyd-Jones who, on 25 October 2007, ordered that the application filed on 23 April 2007 be dismissed and that the applicant pay the respondent Minister’s costs and disbursements of and incidental to the application.
The time fixed by Order 52 rule 15(1) of the Federal Court Rules for the filing and service of a Notice of Appeal from a decision of the Federal Magistrates Court is, generally speaking, 21 days after the date when the judgment appealed from was pronounced.
No Notice of Appeal was filed in this Court within the prescribed time. In the circumstances, the applicant filed an application for extension of time to file and serve a Notice of Appeal in accordance with Order 52 rule 15(2) of the Federal Court Rules on 26 November 2007. Order 52 rule 15(2) provided:
‘15(2)Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’
It is that application which is presently before the Court. When the application was first before the Court on 29 February 2008, I ordered that the application be adjourned for hearing on a later date. Amongst other things, I referred the applicant, in accordance with Order 80 rule 4(1) of the Federal Court Rules, to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance in relation to the application filed 26 November 2007, and any subsequent appeal that may be instituted. The matter has returned to the Court for hearing today. Ms Johnson of Sparke Helmore appears for the respondent Minister. I note that the second respondent, the Refugee Review Tribunal, has filed a submitting appearance save as to costs.
The name of the applicant has been called outside the Court three times, as has the pseudonym by which the applicant is known for the purposes of these proceedings. The applicant has not appeared.
The Court’s file includes a copy of a letter directed to the applicant at the applicant’s address for service and also to the solicitors for the respondent Minister of 14 April 2008, informing the applicant of the fact that the application would be heard before me at 10.15am today in this place. The respondent Minister has tendered a copy of a letter of 4 April 2008 and enclosures, one of which was a set of consent orders and statement of matters justifying same, which, I am informed from the bar table, was sent by courier to the applicant at the applicant’s address for service on 4 April 2008. Accepting, as I do, that the applicant was duly informed of the fact that the hearing would take place at this place today at 10.15 am, it is unfortunate that he has failed to appear and/or to execute and return the consent orders and statement of matters justifying consent orders, as he was invited to do by the respondent Minister.
In the circumstances, I have been asked to proceed to consider the matter and determine it on a final basis. I am invited to have regard to the affidavit of the applicant of 22 November 2007 which attached a copy of the letter from Sparke Helmore to the applicant enclosing a copy of the order made by the Federal Magistrate on 26 October 2007. In substance, the affidavit deposed to not knowing the date of the order of the learned Federal Magistrate until the letter from Sparke Helmore dated 13 November 2007 was received.
The applicant filed with the application, under Order 52 rule 15(2), a draft Notice of Appeal which included the following grounds:
‘1.The Refugee Review Tribunal had jurisdictional errors in its decision. It did not consider all the evidence before it made its decision.
2.The Refugee Review Tribunal has failed to carry out its responsibilities and I face real danger if I go back to my country.
3.The Refugee Review Tribunal’s decision was based on unwarranted assumptions.’
In the absence of consent by the applicant to the making of the orders proposed by Sparke Helmore on behalf of the respondent Minister on 4 April 2008, I am invited by the solicitor for the Minister to make an order extending the time for filing the Notice of Appeal, treating the draft Notice of Appeal which was filed with the application for extension of time as a Notice of Appeal filed and served by the applicant, and to allow the appeal with other consequential orders.
The findings and reasons of the Tribunal addressed whether the applicant had a well founded fear of persecution for reason of political opinion. Amongst other things, the applicant put his case that having fallen out with the authorities, he was unable to secure employment. The Tribunal understood that he may be denied work for a Convention reason falling within s 91R of the Migration Act 1958 (Cth). However, it said:
‘… though the applicant claimed to have been unemployed in the PRC between his alleged May 2006 release from detention and his October 2006 departure for Australia, the Tribunal is not satisfied that he was denied employment for a Refugees Convention reason.’
It seems to me that the Tribunal committed jurisdictional error in deciding that the applicant did not have a well founded fear of persecution for reason of political opinion which rendered him unwilling to avail himself of the protection of the People’s Republic of China and which explained his absence from the People’s Republic of China. As I would understand it, he claimed to fear persecution in the manner indicated in s 91R of the Act. The Tribunal seems to have taken the view that country information supported a finding that the People’s Republic of China had a buoyant and growing economy and thus the applicant would have no difficulty in obtaining employment were he to return to the People’s Republic of China. The proposition only has to be stated to demonstrate that it may be illogical where it seems to have been accepted that the applicant’s government employment had been terminated because of his participation in seditious activities.
The Tribunal also apparently suggested to the applicant that what was available on government files in respect of the applicant would not be available to employers generally. No authority for the Tribunal’s understanding in this regard was stated.
In the ‘statement of matters justifying consent orders’, the respondent Minister acknowledged the following:
‘1.The first respondent [referring to the Minister] accepts that the application for leave and the appeal should be allowed on the basis of the principles identified in the High Court decision of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
2.The first respondent accepts that the Tribunal failed to consider what might happen to the applicant if he returned to the People’s Republic of China (PRC) and acted openly, expressing his protest. The question the Tribunal should have asked was whether the applicant faced a real chance of harm if he openly expressed his protest in Bangladesh, and should not have confined itself to asking what would happen if he acted discreetly and whether having to act discreetly, constituted persecution.
3.The parties accept that the appeal should be allowed and that the application for review should be determined again by the Tribunal.’
In the light of the concessions made by the respondent Minister, and the matters to which I have referred, it seems to me that the extension of time sought by the applicant should be granted and the appeal should be allowed upon the filing of a Notice of Appeal in accordance with the draft attached to the application for extension of time filed 26 November 2007.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 19 June 2008
The Applicant did not appear. Solicitor for the First Respondent: N Johnson of Sparke Helmore The Second Respondent filed a submitting appearance.
Date of Hearing: 28 May 2008 Date of Judgment: 28 May 2008
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