SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship
[2013] FCCA 1119
•23 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQDZ v MINISTER FOR IMMIGRATION & ANOR and SZQER v MINISTER FOR IMMIGRATION & ANOR and SZQGT v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1119 |
| Catchwords: PRACTICE & PROCEDURE – Proceedings remitted following appeal – whether leave to re-open necessary before amendments to applications may be made. |
| Legislation: Migration Act 1958, ss.36, 46A, 477 Federal Court of Australia Act 1976, s.28 |
| Cases Cited: 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 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 SZQFR v Minister for Immigration & Citizenship [2012] FMCA 863 SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 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 |
| Applicant: | SZQDZ |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & 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, MULTICULTURAL AFFAIRS & 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, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1089 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing date: | 13 August 2013 |
| Date of Last Submission: | 13 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr S.E.J. Prince |
| Solicitors for the Applicants: | SBA Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicants’ interlocutory applications made on 13 August 2013 for leave to amend their principal applications be dismissed.
The matters be listed for directions on 2 September 2013 at 9.30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 758 of 2011
| SZQDZ |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
SYG 830 of 2011
| SZQER |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
SYG 1089 of 2011
| SZQGT |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons concern three matters heard and determined by me in 2011: SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652, SZQER v Minister for Immigration & Citizenship [2011] FMCA 738 and SZQGT v Minister for Immigration & Citizenship [2011] FMCA 744 (“primary decisions”). A fourth matter, SZQFR v Minister for Immigration & Citizenship [2011] FMCA 785, was also heard and determined at about the same time. Each of the four applicants was an Afghan offshore entry person who had reached Australia in 2010 by sailing to Christmas Island. In each case, an independent merits reviewer (“Reviewer”) recommended to the first respondent (“Minister”) that the applicant whose claims he was reviewing not be recognised as a person to whom Australia has protection allegations. Each applicant then sought judicial review of the recommendation which concerned him.
Each of the present applicants’ cases was reviewed by the same Reviewer, Mr Packer, who is second respondent in these proceedings. SZQFR’s review was conducted by a different Reviewer.
I held that each case had been brought outside the time limit prescribed by s.477 of the Migration Act 1958 (“Act”). I further held that it was not in the interests of the administration of justice to extend the time within which the cases could be brought because none of the applicants had demonstrated error on the part of the relevant Reviewer or that his substantive claims had reasonable prospects of success. On appeal (“appeal decision”), the Full Court of the Federal Court held that s.477 did not apply to the applicants because, as the Minister had not yet made any decisions by reference to the various recommendations, time had not yet commenced to run. Importantly for the present cases, their Honours said:
… No doubt due to the focus of the parties on the issue of an extension of time, [the Federal Magistrates] 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.
…
We consider that in each of the five applications, leave to appeal should be granted, the appeal be treated as instituted instanter, 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. The parties should prepare short minutes of order to give effect to these conclusions so that they may be made by Rares J following the answers we will give to the separate questions. (SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 at 220 [46] and [48])
In all matters Rares J relevantly ordered:
The orders made by Cameron FM on [date] 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 Court on [date], having regard to the reasons for judgment in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
Recent procedural history
Following remittal of the matters to this Court, each of the four applicants submitted that his matter had been returned for further hearing and that, in the circumstances, I should disqualify myself from those further hearings. I concluded otherwise in SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 (“interlocutory decision”). In so doing, I noted that each matter had been fully argued and that my findings concerning the applicants’ allegations of error on the part of the Reviewers had not been discussed in the appeal decision and thus had not, at least at that point, been found to have been erroneous. I said:
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.
…
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. (at [29] and [39])
I further found that, in the circumstances, no question of disqualification by reason of apprehended bias arose.
SZQFR’s matter subsequently proceeded independently to a final determination which he then appealed to the Federal Court: SZQFR v Minister for Immigration & Citizenship [2012] FMCA 863; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574. Dowsett J dismissed the appeal saying, relevantly for present purposes:
The appellant places considerable emphasis upon the Full Court’s statement at [46] that the applications “require determination on the merits”. The expression “determination on the merits” might describe the process of hearing and deciding a case. However it might equally appropriately describe the process of making an order based on existing findings and reasoning. In this case, the Full Court indicated at [48] that the proceedings should be remitted to the Federal Magistrates Court “to make final orders consistent with these reasons”, suggesting that no further hearing was contemplated. The orders made by Rares J provided for remitter for the purpose of “determination of the relief sought in the amended application …”. In other words, any “determination” was to be as to the relief sought. The appellant’s submissions tacitly assume that the remitter necessitated reconsideration of the merits of the case. Neither the Full Court nor Rares J indicated any such thing. Plainly, the Full Court had in mind the final disposition of the matter by reference to his Honour’s earlier reasons. No doubt it was open to the appellant to seek to lead further evidence, make further submissions, or amend the application, but he did not seek to do so. (at [47])
Applications to amend
By applications made orally on 13 August 2013 the present applicants sought to further amend each of their applications by adding to their prayers for relief a declaration that an International Treaties Obligation Assessment (“ITOA”) made in each of their cases was not made in accordance with law, and a consequential injunction to restrain the Minister from acting or relying on the ITOA relevant to each of them.
SZQDZ and SZQGT sought to include in the bodies of their applications the following allegations:
7.The Reviewer denied procedural fairness to the applicant in that he failed to identify to the applicant that the 2010 DFAT Report identified in [paragraph] of the decision; and the date and sample used in the “Reported [sic] to Danger II” report by the Edmund Rice Centre would be used adversely to the interests of the applicant.
8.The Reviewer failed to make a finding that the applicant’s home village was not on the outskirts of Jaghori or Malistan Districts and that travel to the home village would not involve travel through the outskirts of Jaghori and Malistan districts and accordingly failed to identify the correct issue and its decision was affected by that error so that he exceeded his authority and power.
9.The Reviewer failed to deal with a key integer of the applicant’s claim, namely to make a finding as to whether the applicant would face a real risk of harm at the hands of political parties involved in the conflict in Afghanistan.
10.The Respondent cannot lawfully act on the basis of the ITOA (International Treaties Obligations Assessment) because it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to:
a.be notified that the process was being undertaken; and/or
b.be heard on the questions relevant to the Assessment; and/or
c.respond to the substance and source of information that the Assessor relied upon as being credible, relevant and significant in making the Assessment; and/or
d. be provided with the reasons for the decision.
11.The Respondent cannot lawfully act on the basis of the ITOA Assessment because the assessor did not apply the correct test under s 36(2)(aa) of the Migration Act 1958.
SZQER sought to make those amendments in proposed paras.7, 8, 10 and 11 but substituted proposed para.9 with the following allegation:
The Reviewer failed to make a finding as to whether the applicant would be suspected of returning to Jaghori with a “substantial amount of cash” in light of “Country Information that there have been incidents of harm to deportees usually where they were known or suspected of returning with substantial amounts of cash” at paragraph 106 of the decision and accordingly failed to identify the correct issue and its decision was affected by that error so that he exceeded his authority and power.
Re-opening
Submissions
The applicants submitted that, given the nature of the original hearings and on a proper construction of the appeal decision, their principal applications could be amended without them having to apply to reopen their cases. Specifically, they submitted that they had not closed their cases and had not yet had (final) hearings. They said that in dealing with SZQFR’s relevantly identical case, Dowsett J should be understood to have said that, following remittal, SZQFR could have led further evidence, made further submissions or amended his application, but had not. The present applicants submitted that they had the right on remittal to lead further evidence and to make further submissions or amendments to their applications, and that to find otherwise would be contrary to Dowsett J’s holding in SZQFR.
The present applicants also argued that the allegations concerning, and relief sought in relation to, the ITOAs were relevant to the Minister’s as-yet unexercised power to lift the ban which s.46A of the Act placed on them making valid applications for protection visas. They submitted that this was particularly so given that each ITOA was undertaken before s.36(2)(aa) of the Act commenced and introduced additional, complementary protection considerations into the determination of protection visa applications, refugee status assessments and protection obligations evaluations.
The present applicants also submitted that there was general utility in ensuring, when the Minister did come to make a decision taking complementary protection considerations into account, that there was no risk that a defective ITOA could form part of the information on which his decision would be based even if, as the Minister stated to the Court, the ITOAs themselves would not be relied on because they were out of date.
The applicants further submitted that the ITOA claims should be admitted as amendments because, if they were not, the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 might prevent them from being raised in later, separate proceedings.
Consideration
The histories of the matters relevant to the present issues were set out in the reasons for the interlocutory decision:
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 …
…
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 [31]-[35])
I also said:
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. (at [38])
Significantly, the present applicants have not sought to challenge that conclusion or its bases. Rather, they appear to have relied on the formally interlocutory nature of the original hearings to submit that their cases were not closed. In the context of these matters, such an approach has an air of unreality. Not only did the orders listing the matters for hearing in 2011 contemplate a final hearing of each but that was how they proceeded; as if each was a final and not an interlocutory hearing. For instance, at SZQDZ’s hearing on Monday 15 August 2011 it was said:
Mr Markus:What we do say in relation to your Honour’s exercise of the discretion is contained in our written submissions, and I do not wish to elaborate on that any further, but I do wish to say this. Your Honour needs to be satisfied that it is in the interests of the administration of justice that time be extended. Part of that question or the exercise of your Honour’s discretion will be informed by the strength of the applicant’s case, and your Honour can form a view about that issue at the conclusion of the hearing, and we simply say that your Honour ought to decide as part of your Honour’s final judgment whether time should be extended or not, rather than make a preliminary judgment before your Honour has heard submissions on the substantive issues.
His Honour: Thank you.
Mr Markus: Thank your Honour.
His Honour: Mr Bodisco? What do you - - -
Mr Bodisco:Yes. That does appear to be an approach which would have some utility, I would submit.
His Honour: Yes – which is why I’m happy to proceed on that basis.
Four days later, at SZQER’s hearing on Friday 19 August 2011 it was said:
Mr Bodisco:Yes. Your Honour, as a threshold issue, I seek leave to file in court an affidavit of Francis [sic] Lillian Milne, date affirmed 19 August 2011, which goes to the threshold issue of the lateness of the filing of the original application. …
…
His Honour: So this is in support of the application for an extension of time to bring the proceedings.
Mr Bodisco: It is.
…
His Honour: Do you have any other evidence, Mr Bodisco?
Mr Bodisco: No, your Honour.
His Honour: On any issue?
Mr Bodisco: Pardon?
His Honour: On any issue?
Mr Bodisco: No, your Honour.
…
Mr Bodisco:Yes, your Honour. I trust your Honour has the submissions on behalf of the applicant and the amended grounds of these submissions – or upon which these submissions are based.
His Honour: Yes.
Mr Bodisco:And I note that there is some striking similarities between this matter and the matter which your Honour has reserved on and so I will be truncating my submissions – my oral submissions this morning in light if the fact of your Honour’s consideration reserving – in reserving on judgment on the earlier matter but – however, the application for review is about the failure of the second defendant to take into account the complete absence of internal protection offered to Hazaras by the Afghan State in the face of protection from non-state actors. Persecutory non-state actors are the Taliban and Pashtuns living in the Hazarajat. Where serious harm is inflicted by non-state actors, it is submitted, the unwillingness or inability of the state of nationality to afford internal protection is a relevant consideration in determining whether an applicant for refugee status has a well-founded fear of persecution.
The following month at SZQGT’s hearing on 26 September 2011 it was said:
Mr Bodisco:Your Honour, I seek leave at this instance to file and record an affidavit of Frances Lillian Milne, dated 26 September, in respect of the circumstances by which the late filing ... of the appeal.
…
His Honour: Thank you. Well, I will take that as read.
…
His Honour: Thank you. Well, I will consider that issue as part of my decision on the entirety of the matter. So why don’t you proceed to make your submissions on the issues you want to discuss, Mr Bodisco?
Mr Bodisco:Thank you. I appreciate that. And we offer no further evidence, your Honour.
…
Mr Bodisco:Yes, your Honour. This application for review is about the failing of the second defendant to take into account the complete absence of internal protection offered to Hazaras by the Afghan State in the face of persecution from non-state actors. Your Honour is aware of the arguments that I am to put. And I will be truncating, somewhat, my oral submissions today and relying more so on the written submissions, unless there are issues which your Honour would like raised or would like to raise with me. But the persecutory non-state actors are the Taliban and Pashtun Lajaswarsurat [sic]. And it is submitted that where serious harm is inflicted by non-state actors, the unwillingness or inability of the State of nationality to afford internal protection, it is submitted, is a relevant consideration in determining whether an applicant for refugee states has a well-founded fear of persecution. …
It follows as a consequence of the conclusion I have reached, that in reality the present applicants’ original hearings proceeded as final hearings, that the applicants made and closed their cases on the Reviewer’s alleged errors at that point. Dowsett J observed that that was the burden of the appeal decision when he rejected the assumption implicit in SZQFR’s submissions on appeal that the remitter necessitated reconsideration of the merits of the case. As his Honour said:
Plainly, the Full Court had in mind the final disposition of the matter by reference to his Honour’s earlier reasons.
It was said in Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 and Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 that on remittal of a matter pursuant to s.28(1)(c) of the Federal Court of Australia Act 1976, as is the case here, any further hearing is conducted on the basis that it is a continuation of the first trial. As Kenny J put it in the latter case:
… 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])
In CPSU v Telstra, Finkelstein J accepted that the parties had closed their cases at the trial and that, on remittal of the matter from the Full Court following an appeal, the further hearing was no more than a continuation of the trial at which the parties could:
… only mend their hand or change course in accordance with well-known rules. (at 329 [17])
In that case, his Honour found that there was no reason to permit the CPSU to re-open its case, as it sought to do.
In analogous circumstances involving the United Kingdom’s Asylum and Immigration Tribunal, in DK (Serbia) v Secretary of State for the Home Department [2007] 2 All ER 483, Latham LJ said, Longmore and Moore-Bick LJJ agreeing, that a matter remitted to that tribunal for reconsideration was, except to the extent that the original decision was affected by error of law, to be determined on the basis of the original findings of fact and conclusions. In cases where reconsideration disclosed no error, his Lordship said that the tribunal ought only revisit the original findings and conclusions
… if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them. (at 496 [25])
Consequently, before the amendments presently sought may be addressed, the applicants must first demonstrate that they should be permitted to re-open their cases. Contrary to the applicants’ submissions, such a finding is not contrary to Dowsett J’s holding in SZQFR.
The applicants expressly eschewed any applications to re-open. That being so, no orders of that sort will be made.
The proposed amendments
The parties also made submissions on the proposed amendments. In the circumstances it is not necessary to consider those submissions. In any event, before making a decision on this aspect of the matter I would need to hear further from the applicants as to why their proposed amendments concerning the proceedings before the Reviewer would have reasonable prospects of success.
Conclusion
In circumstances where the applicants did not seek to re-open their cases, and with all respect to the arguments of their counsel, their interlocutory applications to amend their principal applications were misconceived. Consequently, the interlocutory applications will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 23 August 2013
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