SZVYD v Minister for Immigration and Border Protection
[2018] FCA 557
•23 April 2018
FEDERAL COURT OF AUSTRALIA
SZVYD v Minister for Immigration and Border Protection [2018] FCA 557
Appeal from: SZVYD v Minister for Immigration & Anor [2017] FCCA 2909 File number: NSD 1994 of 2017 Judge: ALLSOP CJ Date of judgment: 23 April 2018 Catchwords: MIGRATION – protection visa – application to file amended notice of appeal – whether a law is of general application – whether a law is appropriate and adapted to some legitimate object in the country in question – costs thrown away Legislation: Migration Act 1958 (Cth) Date of hearing: 23 April 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: Mr P Bodisco Counsel for the First Respondent: Mr J Kay-Hoyle Solicitor for the First Respondent: Clayton Utz ORDERS
NSD 1994 of 2017 BETWEEN: SZVYD
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
23 APRIL 2018
THE COURT ORDERS THAT:
1.The appeal listed today be vacated and stood over to a date to be fixed for hearing, either before a Full Court or a single judge.
2.On or before 4 May 2018, the appellant file and serve:
(a)an amended notice of appeal directed solely to the question of a law of general application and written submissions of no more than 10 pages in support. These submissions are also to include submissions directed to the further conduct of the appeal, in particular as to:
(i)whether the appeal should continue before a Full Court or a single judge; and
(ii)whether an oral hearing is required.
(b)an affidavit explaining:
(i)why the orders of Registrar McCormick made 27 November 2017 were not complied with;
(ii)why assistance was not given to the appellant’s solicitor in the latter’s attempts to propound the appellant’s case;
(iii)why the application for the amended notice of appeal was made on the day of the hearing today; and
(iv)why the appellant should not pay a sum of costs consequent upon order 7 below appropriate to his means in advance of his appeal being heard.
3.On or before 18 May 2018, the first respondent file and serve written submissions of no more than 10 pages in answer.
4.On or before 25 May 2018, the appellant file written submissions of no more than 5 pages in reply.
5.The matter be stood over for case management at 9:30am on 31 May 2018.
6.Leave be granted to the representatives of the appellant and the first respondent to contact the associate to the Chief Justice to vacate that date should it be unnecessary or inconvenient.
7.The costs of the first respondent to date be paid by the appellant in any event.
8.There be liberty to apply on 24 hours’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This matter was listed today for hearing. It is an appeal against orders made by the Federal Circuit Court of Australia on 4 October 2017, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) in December 2014.
The appellant is a citizen of Bangladesh who arrived in Australia in December 2002. A summary of his claim is that he fears persecution on return to Bangladesh because of his now dependence on alcohol. His claims in the Tribunal were broadly that he will not be in a position to, and not desirous of or not able to, stop drinking when he returns to Bangladesh. A law of Bangladesh, the Intoxicant Control Act 1990, prohibits the consumption of alcohol by Muslims. The appellant is a Muslim.
There were a number of issues raised before the Tribunal. The appellant as applicant before the Tribunal was accepted to be an alcoholic. The matter before the Circuit Court had a number of grounds to it. Included in those grounds were that the relevant law was a law of general application, but if it was in some way discriminatory, the law was appropriate and adapted to a legitimate object of the country in question.
The notice of appeal that has been filed and on foot since November 2017 had no basis of any grounds of appeal. Notwithstanding the directions of the Registrar made in November 2017, no submissions have been filed. This led to the Minister filing submissions on the basis that the appeal should be dismissed by reason of its emptiness of content in the respect that I have identified. Prior to the hearing of the appeal today, on 16 April 2018, my chambers were contacted by the solicitors for the appellant who informed the Court that they were proposing to withdraw from the matter, not being able to obtain instructions from the appellant.
The matter was listed today and Mr Bodisco of counsel appeared pro bono on behalf of the appellant, having been previously retained in the matter by the solicitors who have sought to cease to act.
Mr Bodisco has handed to the Court a draft notice of appeal which identifies one ground of appeal, as follows:
The Judge of the Federal Circuit Court erred in failing to discern jurisdictional error in circumstances where the Tribunal erroneously determined that “any punishment administered to the applicant under the Intoxicant Control Act would be as a result of a law of general application. [sic]
Leave is sought to file that notice of appeal as an amended notice of appeal. I do not propose to permit the filing of that particular document. I consider that the point raised is inadequately identified, but it is one which can be remedied and I will give leave to file an amended notice of appeal raising the point, but in both its manifestations; that is, firstly, the question of whether the law is a law of general application, and secondly, if it is discriminatory, the question of whether the law is appropriate and adapted to some legitimate object of the country in question.
That amended notice of appeal will be filed by Friday 4 May together with submissions in support of the asserted grounds of appeal. Leave is only sought in relation to the general application point, if I may use that expression compendiously, and is only granted on the basis of the general application point. This will require consideration by the first respondent Minister and submissions should be thereafter filed within 14 days, that is, by 18 May, with any submission properly in reply by the appellant by 25 May. These submissions should also address the questions as to whether an oral hearing is required and whether a Full Court as opposed to single judge would be more appropriate to the hearing of the matter.
I stand over this appeal for case management to the extent that is necessary on 31 May. The listing is really so that the matter does not fall between the cracks and so on. I grant the representatives of the parties liberty to contact my associate to vary or vacate that date should it be unnecessary or otherwise inconvenient.
The history of the matter thus far, as indicated, shows that the question of costs has to be addressed. The costs to date have been simply wasted and I would order that the appellant pay the first respondent’s costs to date as costs thrown away and they should be paid in any event. There is no evidence before the Court today for the application for an adjournment which Mr Bodisco necessarily makes. There seems to be no debate – or no doubt – on the material before the Court that the Tribunal, at least, has been satisfied that the appellant suffers from severe dependence to alcohol. That may or may not explain the clear disregard of the Court’s orders since November and the disregard of his solicitor’s entreaties to assist them in presenting his case.
Were it not for the concern that I had that the appellant’s condition – self-induced or not – may have contributed to these matters, I would order that either the whole of the costs or at least a significant earnest of them, such as three to four or five thousand dollars, be paid to the first respondent before his appeal is advanced. At the moment, I will not make that order, but I will require that by 4 May that there also be filed an affidavit explaining the failure of the appellant to comply with the Court’s orders, to assist his solicitors in presenting material for the Court and for the lateness in the raising of his point. Upon receiving that material, the Minister may put submissions in the submissions to which I’ve already referred addressing the question of costs.
For those reasons, I make the following orders:
1.The appeal listed today be vacated and stood over to a date to be fixed for hearing, either before a Full Court or a single judge.
2.On or before 4 May 2018, the appellant file and serve:
(a)an amended notice of appeal directed solely to the question of a law of general application and written submissions of no more than 10 pages in support. These submissions are also to include submissions directed to the further conduct of the appeal, in particular as to:
(i)whether the appeal should continue before a Full Court or a single judge; and
(ii)whether an oral hearing is required.
(b)an affidavit explaining:
(i)why the orders of Registrar McCormick made 27 November 2017 were not complied with;
(ii)why assistance was not given to the appellant's solicitor in the latter's attempts to propound the appellant's case;
(iii)why the application for the amended notice of appeal was made on the day of the hearing today; and
(iv)why the appellant should not pay a sum of costs consequent upon order 7 below appropriate to his means in advance of his appeal being heard.
3.On or before 18 May 2018, the first respondent file and serve written submissions of no more than 10 pages in answer.
4.On or before 25 May 2018, the appellant file written submissions of no more than 5 pages in reply.
5.The matter be stood over for case management at 9:30am on 31 May 2018.
6.Leave be granted to the representatives of the appellant and the first respondent to contact the associate to the Chief Justice to vacate that date should it be unnecessary or inconvenient.
7.The costs of the first respondent to date be paid by the appellant in any event.
8.There be liberty to apply on 24 hours' notice.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 23 April 2018
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