FEDERAL COURT OF AUSTRALIA

SZDMP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 883

SZDMP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 893 of 2005

BRANSON J

23 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The applicant be granted leave to appeal from the judgment of the Federal Magistrates Court in SYG 1329 of 2004 dated 16 May 2005.

2.      The costs of the application for leave to appeal be costs in the appeal.

REASONS FOR JUDGMENT

1                     The applicant has applied for leave to appeal from an interlocutory judgment of the Federal Magistrates Court.  The orders which the applicant wishes to have set aside were made by a Federal Magistrate in Chambers in the absence of the parties on 16 May 2005.

2                     The circumstances in which the orders came to be made are as follows.

3                     The applicant, who is a citizen of the People’s Republic of China, applied for a protection visa on the basis that he feared persecution in China as a follower of the Zhong Gong religion.  The applicant’s claim to be entitled to a protection visa was rejected by both a delegate of the Minister and by the Refugee Review Tribunal (‘the Tribunal’).

4                     On 6 May 2004 the applicant filed an application for judicial review of the decision of the Tribunal in the Federal Magistrates Court.  On 16 August 2004 a Registrar ordered the applicant, amongst other things, to file and serve an amended application giving complete particulars of each ground of review being relied upon.  The applicant failed to comply with the order and his application was listed for a ‘non‑compliance hearing’.  He failed to attend this hearing and his application was dismissed by Lloyd‑Jones FM pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules (‘the Rules’) because of his absence from the hearing.  He was ordered to pay the respondent’s costs fixed at $4000.

5                     On 26 November 2004 the applicant filed a notice of motion and supporting affidavit seeking to have his application re‑instated.  On 8 March 2005, after hearing submissions from the parties, Lloyd-Jones FM ordered the applicant to file and serve an amended application giving complete particulars of each ground of review being relied upon by 8 April 2005.  Implicit in his Honour’s order was an order setting aside the earlier dismissal of the applicant’s application to the Federal Magistrates Court.  The intended effect of his Honour’s orders on the costs order earlier made by him is unclear.  His Honour further ordered that if the applicant did not comply with the order that required him to file an amended application ‘the matter will be dealt with in chambers by Federal Magistrate Lloyd‑Jones for summary dismissal’.

6                     On 8 April 2005 the applicant filed an amended application in the Federal Magistrates Court.  The ground of review set out in the amended application was:

‘Section 424A of the Migration Act 1958:

The Tribunal failed to comply with its obligation pursuant to the above Act and denied the appellant procedural fairness.’

7                     It appears that the amended application filed by the applicant did not come to the attention of the respondent’s solicitor.

8                     By letter dated 12 April 2005 addressed to the Deputy Associate to Lloyd‑Jones FM the solicitor for the respondent suggested that an amended application had not been filed and requested that the following orders be made:

‘(i)       Notice of Motion filed 26 November 2004 be dismissed;

(ii)               The applicant pay the respondent’s costs of and incidental to the Notice of Motion in the sum of $1000.00.’

9                     On 16 May 2005 Lloyd‑Jones FM made the following orders in Chambers in the absence of the parties:

‘(1)      The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 8 March 2005.

(2)        The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.’

10                  The intended relationship between the costs order made by his Honour on 16 May 2005 and the costs order made by him on 8 November 2004 is unclear.

11                  The learned Federal Magistrate prepared written reasons for judgment in respect of his orders of 16 May 2005.  The introductory paragraphs of the reasons for judgment are in the following terms:

‘1.        This matter was brought before the Court by the solicitors for the respondent as a Notice of Motion seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth) … for failing to comply with orders of the Court.

2.         After a brief hearing of submissions from both parties, further interim orders were made setting out a revised timetable.  The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by the force of those orders.  The final orders and the reasons for judgment were subsequently made in Chambers.’

12                  As the circumstances outlined above reveal, his Honour proceeded under a mistaken belief as to the history of the applicant’s application to the Federal Magistrates Court and the significance of the orders previously made on that application.

13                  Rule 13.03 of the Rules provides:

‘(1)      This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

(2)        Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order:

            (a)        that the step be taken within a stated time; or

            (b)        to end the proceeding or dismiss a response.

(3)        The Court may make the order sought or another order that it considers appropriate.’

14                  In my view it is far from clear that either s 13 of the Federal Magistrates Act 1999 (Cth) (‘the Act’) or rule 13.03 of the Rules authorised the procedure adopted by the Federal Magistrates Court in this matter.  In particular it is not obvious that either the Act or the Rules authorised –

(a)                the informal application made to the Federal Magistrate by the letter from the respondent’s solicitor dated 12 April 2005;

(b)               the dismissal of the applicant’s amended application filed on 8 April 2005 without his being heard in opposition to that course; or

(c)                the making of an order bringing the proceeding to an end, and the publication of reasons for judgment in respect of that order, in Chambers.

15                  In my view, it is appropriate in the circumstances that the applicant be granted leave to appeal from the interlocutory judgment of the Federal Magistrates Court.  I propose further to refer the applicant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance.

Associate:

Dated:              30 June 2005