SZQDZ v Minister for Immigration & Citizenship
[2012] FMCA 793
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDZ & ORS v MINISTER FOR IMMIGRATION & ANOR; SZQFR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 793 |
| MIGRATION – Practice and procedure – remittal of proceedings following successful appeals – nature of remitted proceedings. |
| Migration Act 1958, s.477 Federal Court of Australia Act 1976, ss.28, 30 |
| SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652 SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 SZQGT v Minister for Immigration & Citizenship [2011] FMCA 744 SZQFR v Minister for Immigration & Citizenship [2011] FMCA 785 CPSU, The Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 CPSU, The Community & Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 207 CPSU, The Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 564, (2001) 112 FCR 324 at 330 Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 DK (Serbia) v Secretary of State for the Home Department [2007] 2 All ER 483 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 |
| Applicant: | SZQDZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 758 of 2011 |
| Applicant: | SZQER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 830 of 2011 |
| Applicant: | SZQGT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1089 of 2011 |
| Applicant: | SZQFR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 968 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 August 2012 |
| Date of Last Submission: | 23 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| Counsel for SZQDZ, SZQER and SZQGT: | Mr S. Prince |
| Solicitors for SZQDZ, SZQER and SZQGT: | SBA Lawyers |
| Counsel for SZQFR: | Mr J. Smith |
| Solicitors for SZQFR: | Salvos Legal Humanitarian |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The matters be listed for further directions on 13 September 2012 at 9.30am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 758 of 2011
| SZQDZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
SYG 830 of 2011
| SZQER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
SYG 1089 of 2011
| SZQGT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
SYG 968 of 2011
| SZQFR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons concern four matters heard and determined by me in 2011. As consequence of the judgment of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 (“appeal decision”), the orders made by me in each of these matters have been set aside and the matters remitted to this Court for determination in light of the reasons for judgment in the appeal decision.
Questions have now arisen concerning the nature of the remitted proceedings and whether I should disqualify myself from hearing them further. These reasons concern those issues. As the same considerations apply in all four matters, these reasons apply equally to each of them.
Each of the applicants claims to be a Hazara Shia citizen of Afghanistan and to have a well-founded fear of persecution there by reason of his ethnicity and his religion. All the applicants arrived in Australia by boat, landing at Christmas Island on various dates in 2010. They then sought Australia’s protection pursuant to the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). Each of the applicants was assessed as not meeting the criteria for the grant of a protection visa and upon subsequent review by independent merits reviewers, those assessments were repeated. As part of each of those reviews the respective independent merits reviewers recommended to the Minister for Immigration and Citizenship (“Minister”) that the relevant applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
Each applicant then sought judicial review of the recommendation which concerned him, by commencing proceedings in this Court. On various dates in 2011 I dismissed those applications on the bases that they had been brought outside the time limit prescribed by s.477 of the Migration Act 1958 (“Act”) and that it was not in the interests of the administration of justice to extend the time within which they could be brought: SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652, SZQER v Minister for Immigration & Citizenship [2011] FMCA 738, SZQGT v Minister for Immigration & Citizenship [2011] FMCA 744 and SZQFR v Minister for Immigration & Citizenship [2011] FMCA 785 (“primary decisions”). The facts of the cases are more fully set out in those reasons for judgment but it is important to note at this point that in each case the basis on which it was found that an extension of time under s.477 of the Act was not in the interests of the administration of justice was that the applicant in question had not demonstrated error on the part of the relevant independent merits reviewer or that his substantive claims had reasonable prospects of success.
On appeal it was held that s.477 of the Act had no application to these cases and that I had erred by dismissing the applications by reference to its provisions.
In each of the appeals from this Court certain questions were referred to the Full Court of the Federal Court by Rares J. The appeal decision records the Full Court’s consideration of those issues. Rares J then made orders in accordance with the answers given by the Full Court. In each case his Honour’s orders relevantly provide:
The orders made by Cameron FM on [the relevant date in] 2011 be set aside.
The matter be remitted to the Federal Magistrates Court of Australia for determination of the relief sought in the Amended Application filed in the Federal Magistrate’s [sic] Court on [the relevant date], having regard to the reasons for judgment in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
On the first occasion the matters were before this Court following the orders of the Federal Court, they were listed together. On that occasion and following the suggestion of each of the applicants that, by reason of a reasonable apprehension of bias I disqualify myself from further hearing and determining the matters, I directed that on 23 August 2012 the parties make submissions to me on the following questions:
1. Do the Full [recte: Federal] Court’s decision and orders permit amendments to the applicants’ applications?
2. Is this Court required to reconsider those aspects of the applicants’ substantive applications which were considered previously?
3. If the answer to 2 is yes, is it appropriate that I hear the matters?
Submissions
Amendments and further hearing
At the interlocutory hearing on 23 August 2012 applicants SZQDZ, SZQER and SZQGT submitted that their cases had been remitted not simply for the making of final orders but for further hearing in the normal way albeit free of any question of them being out of time. It was argued that because each of their matters had been determined by reference to the threshold limitation issue, the substantive cases which they had advanced had never been evaluated. This, it was said, meant that in each case a live and valid application was before the Court which had not been dealt with and had to be dealt with.
Those applicants also expressed a wish to amend their applications. It might be noted that each had already amended his application once prior to the primary decisions.
Applicants SZQDZ, SZQER and SZQGT pointed to the following passages from the appeal decision:
… No doubt due to the focus of the parties on the issue of an extension of time, that [ie this] Court was led to misconceive the nature of the applications by dealing with them under s 477(2). The applications require determination on the merits.
…
… the orders dismissing the proceedings below should be set aside and the proceedings should be remitted to the Federal Magistrates Court to make final orders consistent with these reasons. An appeal will then lie as of right to this Court from those orders. … (at 220 [46] and [48])
They submitted, in effect, that there was nothing in the latter passage to suggest that the process on remittal would simply to be to repeat, in the context of determinations of the substantive applications, the findings on the applicants’ allegations of legal error on the part of the respective reviewers which the Court had made earlier in the context of their s.477 applications. Referring to [51] of the appeal decision where it was said:
In our view the Federal Magistrates Court erred in dismissing, on a summary and not final basis, the substantive applications on the footing that they were out of time and therefore could not succeed (at 221)
those three applicants submitted that the error was not in not dismissing the matters on a final basis but, rather, in dismissing them on a substantive basis without hearing the substantive applications.
Applicants SZQDZ, SZQER and SZQGT said that the Federal Court’s decision made it plain that they were being given an opportunity to have their claims for relief dealt with substantively and subject to the Court’s ordinary trial processes, which included a hearing. On that basis it was also submitted that there was nothing exceptional in allowing them leave to (further) amend their applications.
Applicant SZQFR submitted that because this Court’s orders were set aside, its exercise of jurisdiction was incomplete and the completion of the exercise of that jurisdiction required a further hearing.
The Minister submitted in all four matters that the setting aside of this Court’s orders and the remittal of the matters by the Federal Court for determination of the relief sought meant that each of the applicants would be entitled to a further hearing and to make further submissions. It was further submitted that if an applicant wished to raise a further ground then he was entitled to apply to do so, at which point a decision would be made on any such application in accordance with ordinary principles. It was submitted that in cases of this sort, where an amendment could only prejudice the Minister in costs, the Court would entertain an application to amend and, subject to being satisfied that the proposed amendment was not vexatious, allow it to be made.
Disqualification
Applicants SZQDZ, SZQER and SZQGT submitted that although I had not dealt with their applications as substantive matters, when considering the s.477 issue I had nevertheless expressed views on the substance of the cases such that I would not now be able to deal with those matters in the way intended by the Federal Court. Those applicants referred to the importance of maintaining the appearance of not having pre-judged an issue or matter.
Applicant SZQFR submitted that, in circumstances where I had previously found that he did not have a reasonable argument on his substantive application, a reasonable lay observer might apprehend that I had made up my mind on the critical issue to be determined.
The Minister argued that I should not disqualify myself.
Consideration
Amendment of application and further hearing
As far as they go, the applicants’ submissions, either that a live and valid application was before the Court and had to be dealt with, or that the Court’s exercise of jurisdiction was incomplete and had to be completed, are correct. However, it is not a necessary corollary of the fact that the Court has been directed to deal with the applicants’ substantive applications that a further hearing is necessary in any of these cases or that further amendments to three of the applications should be permitted.
Section 28 of the Federal Court of Australia Act 1976 prescribes the orders which the Federal Court may make when disposing of an appeal. Relevantly it states:
28 Form of judgment on appeal
(1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a)affirm, reverse or vary the judgment appealed from;
(b)give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
(d)…
(f)grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or
(g)…
In CPSU, The Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 the Full Court of the Federal Court had set aside the order made at trial and “remitted [the matter] to the primary judge to be determined in accordance with [the Full Court’s] reasons for judgment” (at 325 [1]). The consequence of the Full Court’s decision was that Finkelstein J had to determine an issue which he had not resolved initially: CPSU v Telstra Corporation Ltd (No 2) at 326 [4] – [6], see also CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 207 at 208 [5], [6].
Following return of the matter to Finkelstein J, a question arose as to how the remitted application was to be conducted. In resolving that issue his Honour considered the powers provided by s.28 of the Federal Court of Australia Act and concluded that the Full Court’s order had been made pursuant to s.28(1)(c). His Honour further concluded that an order under that paragraph does not result in a new trial and that any further hearing which may be ordered pursuant to it is to be conducted on the basis that it is a continuation of the first trial “where the parties can only mend their hand or change course in accordance with well known rules”: at 329 [17]. He ruled that it had not been shown that there was a reason why the CPSU should be permitted to re-open its case.
Less than a fortnight later, in CPSU, The Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 564, reported in CPSU v Telstra Corporation Ltd (No 2) at 330, Finkelstein J made a supplementary ruling on the issue. His Honour referred to s.30 of the Federal Court of Australia Act, observing that he had not noticed it when making his ruling in CPSU v Telstra Corporation Ltd (No 2), and said that it tended to confirm the conclusion he had reached there. In circumstances where a new trial is ordered, s.30 provides that detailed orders governing the new trial may be made, such as admissions which a party must make, whether and how the testimony of a witness at the original trial may be used and whether the new trial is to be on all issues or on particular issues only.
In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 Kenny J also dealt with a remitted matter which required her to consider an issue which she had not considered on the first occasion the matter had been before her. Her Honour followed Finkelstein J’s reasons in CPSU v Telstra Corporation Ltd (No 2), saying:
Where a matter is remitted pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth), the further hearing is conducted on the basis that it is a continuation of the first trial: see Community and Public Sector Union v Telstra Corp Ltd (No 2) (2001) 112 FCR 324 at 329; [2001] FCA 479 at [17] per Finkelstein J. Thus, the remaining issues fall to be determined on the evidence that has already been adduced and on the basis of the parties’ further written submissions … (at 270 [8])
It is plain from her Honour’s judgment that the further written submissions to which she referred were only to address the issue which had not been considered previously.
In a not wholly dissimilar context, it was said in the English Court of Appeal in DK (Serbia) v Secretary of State for the Home Department [2007] 2 All ER 483:
The most important [consequence of a body having to reconsider a decision it previously made] is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing ... (at 495 [22] per Latham LJ, Longmore and Moore-Bick LJJ agreeing).
That case concerned the review process applicable to primary decisions of the United Kingdom’s Asylum and Immigration Tribunal (“Tribunal”). There the process was that if a senior immigration judge determined that a Tribunal decision was arguably affected by legal error, the judge would order the Tribunal to “reconsider” (a term employed by the relevant legislation) the matter. In such reconsideration, the first question for the Tribunal was whether there had, in fact, been legal error. If such an error could be discerned, the Tribunal could then proceed to reconsider the substance of the “appeal”.
Applying the general statement quoted above at [23] to the specific circumstances before him Latham LJ continued, Longmore and Moore-Bick LJJ agreeing:
It follows that if there is to be any challenge to the factual findings, or the judgments or conclusions reached on the facts which are unaffected by the errors of law that have been identified, that will only be other than in the most exceptional cases on the basis of new evidence or new material as to which the usual principles as to the reception of such evidence will apply …
…
Accordingly, as far as the scope of reconsideration is concerned, the tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the tribunal should only revisit them if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions (at 496 [23], [25]).
Whether the applicants SZQDZ, SZQER and SZQGT will be permitted to amend their applications for a second time, and whether there will be further hearings other than for directions, must be decided by reference to the Federal Court’s order, which was to the effect that this Court determine the applicants’ claims for substantive relief free of the error of considering s.477 to have any relevance.
It will be observed that the remittal orders made by the Federal Court in this matter are very similar in substance to the remittal order in CPSU v Telstra Corporation Ltd (No 2). I conclude that they were made pursuant to s.28(1)(c) of the Federal Court of Australia Act.
As in the CPSU case and in Commissioner of Taxation (Cth) v Pratt Holdings, the consequence of the Federal Court’s order is that there is an issue unresolved which must now be decided. In each case the issue which the Court must determine is whether the applicant in question is entitled to the declaratory and injunctive relief he seeks. The decision on that question turns on whether the respective applicants can demonstrate that the relevant independent merits review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
As recorded in the primary decisions, in each of these cases I found that the various allegations of error on the part of the independent merits reviewers had not been made out. It was on the basis of those findings that I determined that it was not in the interests of the administration of justice that time to bring the proceedings be extended. Those findings were not discussed in the appeal decision. Put another way, they are findings which have not, at least at this point, been found to be affected by legal error. Consequently, subject to any re-opening of the applicants’ cases, there is no need or reason to reconsider them and no call to permit amendments, further hearings or further submissions in relation to them. The question which the Federal Court remitted to this Court in each case can, and absent a re-opening should, be determined in accordance with the findings made in the relevant primary decision.
This may seem an inappropriate conclusion given that, as noted earlier, in the primary decisions the relevant question was whether the applicants’ substantive cases had reasonable prospects of success, not whether they would succeed or fail. Those circumstances might suggest that at their respective hearings the applicants had not fully addressed the Court on the merits of their substantive applications and that any findings on such matters ought not be considered determinative of whether the reviews were procedurally unfair or not conducted by reference to the correct legal principles correctly applied. However, that characterisation would not be correct.
On the first occasion SZQDZ’s matter was before the Court it was ordered that:
The matter is listed for final hearing and the hearing of the application for extension of time together at 10.15am on 15 August 2011 …
In SZQER’s case the relevant order on the first occasion was:
The matter, including the application for an extension of time, be listed for hearing on 19 August 2011 at 10.15am …
In SZQGT’s case the relevant order on the first occasion was:
The application is listed for hearing of the application for an extension of time and final hearing together on the grounds set out in the application as may be amended on 26 September 2011 at 2:15pm …
In SZQFR the equivalent order made at the first return date was:
The matter, including the application for an extension of time, be listed for final hearing on 24 August 2011 at 10.15am …
It is apparent from those orders that each matter was listed for a hearing which would include full argument on and consideration of the merits of each applicant’s substantive application for a declaration that the independent merits reviewer in question had erred and for consequential injunctive relief. That is what occurred.
At the hearing of SZQDZ’s matter, although the question of an extension of time under s.477 was addressed, it was not the principal topic of submissions. The merits of the substantive application were fully argued as an integral part of the s.477 issue. Indeed, the applicant’s written submissions dealt with nothing else. These observations also apply to SZQER’s case and to SZQGT’s case.
In SZQFR’s case, his written submissions moved quickly from a submission that s.477 did not apply as no “migration decision” as defined by the Act had yet been made, to the merits of the substantive application. The applicant’s oral submissions focussed on whether the reviewer in that case had erred and it was only when I questioned whether an extension of time was needed that that issue was addressed by the applicant.
Although at the original hearings the applicants only had to satisfy me that their substantive allegations had reasonable prospects of success, it is not apparent to me that the approach they took to the question of the legal correctness of the reviewers’ reviews was different from the one which they would have taken if s.477 had not been an issue. Moreover, it was not suggested in the submissions on the present questions that any of the applicants’ original arguments had been framed so as to only make out a case with reasonable prospects of success, rather than as a full argument on whether the relevant reviewer had erred. Unless and until such an allegation is made, I see no reason to conclude other than that at their respective, original hearings each applicant advanced his case of reviewer error as forcefully and as persuasively as he could and that if there had been no question of s.477’s application, as then advised, his arguments on the legal correctness of the relevant review would have been no different.
I conclude that observance of the Federal Court’s order requires me, subject to any re-opening of any of the cases, to determine the applicants’ substantive claims based on the cases as presented at the original hearings and the findings expressed in the primary decisions: CPSU v Telstra Corporation Ltd (No 2); Commissioner for Taxation v Pratt Holdings Pty Ltd; DK (Serbia) v Secretary of State for the Home Department. The latter decision also gives guidance as to what circumstances might justify a re-opening of any of the cases should application to re-open be made.
Disqualification
In the present circumstances no question of disqualification by reason of apprehended bias arises.
Conclusion
The matters will be listed for further directions on 13 September 2012.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 6 September 2012
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