FEDERAL COURT OF AUSTRALIA

SZKFC v Minister for Immigration and Citizenship [2007] FCA 687

SZKFC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 467 OF 2007

COWDROY J

25 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the costs of the first respondent in the sum of $1275.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of Federal Magistrate Scarlett dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) to refuse the applicant a protection visa.

BACKGROUND

2                     The applicant is a citizen of Morocco who arrived in Australia on 7 February 1999. On 29 December 2005 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’). A delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application on 23 January 2006. On 2 March 2006 the applicant applied to the Tribunal for a review of that decision.

3                     The applicant claims that he left Morocco for further studies, for the possibility of establishing a commercial enterprise in Australia, and to be removed from the tense atmosphere in Morocco. The applicant claimed that the basis of his persecution related to the terrorist explosion on 16 May 2003 in Casablanca which led to the police and secret service initiating a widespread campaign of raids in which 2000 people were arrested.

4                     The applicant claimed that he had friends involved with the Islamic Organisation for Human Rights which had been of interest to the government and that his brother was a journalist and a prominent supporter of the Moroccan Human Rights movement.

5                     The applicant claimed that his brother had told him that Moroccan security agents had come to his workplace in August 2003 to interrogate the applicant. The applicant’s brother threatened to report them to humanitarian and legal organisations, which only aggravated the tension. The applicant claimed he was warned by his brother not to return to Morocco and feared being subject to interrogation and torture by the Moroccan secret service.

THE TRIBUNAL’S DECISION

6                     The Tribunal noted a number of discrepancies between the applicant’s written and oral evidence and decided that it would rely on the applicant’s oral evidence to the extent of the inconsistencies.

7                     The Tribunal consulted independent country evidence which indicated that the Moroccan authorities had identified Islamic extremist groups as being responsible for the May 2003 terrorist attacks and had focused on the Salafiya Jihadiya organisation. The Tribunal noted that there was nothing to indicate that Moroccan authorities had targeted human rights organisations and their members. Further, the applicant’s brother who was a leading human rights activist had not been harmed and was not of interest to the authorities. The applicant had stated his friend had belonged to human rights advocacy groups. However, these groups were not of special interest to the authorities, and the applicant had not provided satisfactory evidence to show that his friend would be arrested nor that he was implicated by association.

8                     The Tribunal also noted that the applicant had not been involved in political activity and did not have a profile that would make him of interest to the authorities. It found that the applicant had been absent from Morocco during the four years preceding the May 2003 attacks and that there was a lack of evidence to suggest he would be suspected of any involvement. The Tribunal was satisfied that the applicant was of no genuine continuing interest to the authorities and that the chance of harm to the applicant was remote. For this reason it decided that the applicant was not a refugee within the meaning of the Convention relating to the Status of Refugees 1954.

THE DECISION OF THE FEDERAL MAGISTRATE

9                     On 14 February 2007 the applicant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. The grounds of appeal related to a breach of s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’). The application stated that the applicant was notified of the decision of the Tribunal on 23 May 2006. Scarlett FM found that the application was filed outside the 84 day period required by s 477 of the Act and accordingly dismissed the application for want of jurisdiction.

APPLICATION FOR LEAVE TO APPEAL

10                  On 23 March 2007 the applicant filed an application for leave to appeal from the decision of Scarlett FM. The applicant also seeks an extension of time within which to appeal. The applicant filed an affidavit and a draft Notice of Appeal which claims a breach of s 424A of the Act by the Tribunal and that the Tribunal failed to comply with common law procedural fairness. The decision of the Tribunal and a transcript of the Tribunal hearing was annexed to the affidavit.

FINDINGS

11                  The relevant considerations in granting leave to appeal are those cited by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399 wherein their Honours affirmed the principles laid down in Niemann v Electronic Industries Ltd [1978] VR 431. Their Honours stated the relevant considerations as follows:

‘… In Sharp v Deputy Commissioner of Taxation (Cth) (1998) 88 ATC 4,184 at 4,186 (and see also Merman Pty Ltd v Cockburn Cement Ltd [1989] 11 ATPR 49,951 at 49,954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991)) Burchett J stated the “major consideration[s]”, to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

…

In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”’

12                  The Full Court in Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd (Administrator Appointed) & Australian Securities & Investment Commission [2004] FCAFC 303 at [19]–[20] said:

‘19.     As was pointed out in Weatherall at 104, citing Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 70 FCR 71 at 80-81 (“Lloyd Werft Bremerhaven”), where the practical effect of an interlocutory order is to determine, once and for all, the fate of the action, that fact must be taken into account as it may strongly favour the grant of leave. The Full Court in Lloyd Werft Bremerhaven observed at 80-81:

                       “In any event, having regard to the effective finality of his Honour’s disposition of the matter, if leave to appeal were required, it would be appropriate to grant it, provided we find substance in the appellant’s arguments.”

 20.     In MAS v Football Tasmania the Full Court similarly recognized that a judgment dismissing an application as disclosing no reasonable cause of action, though interlocutory, has an effective finality about it. That meant that it would be appropriate to grant leave to appeal from a judgment of that kind, and to extend time if necessary, if the applicant could point to any material suggesting that he might be able to make out a case against the respondent. However, in the particular circumstances of that case, the applicant could not pass even that low threshold. Accordingly, the Full Court dismissed his purported appeal as incompetent, and refused to grant an extension of time for the filing of an application for leave to appeal.’

13                  The distinction between a final and interlocutory order has also been considered in Dai Rong-Hua v Telecommunications Industry Ombudsman [2000] FCA 717 where this Court at [7] referred to the decision of the High Court of Australia in Hall v The Nominal Defendant (1966) 117 CLR 423 at 440. These authorities establish that where there is no final determination of a party’s rights, for example where a claim is struck out for being an abuse of process of the Court, such decision is purely interlocutory.

14                  In the present circumstances the decision of Scarlett FM did not finally conclude the rights of the parties and as such his Honour’s decision is interlocutory. Leave is required to appeal from such a decision pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

15                  Section 477 of the Act relevantly provides:

‘(1)   An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

 (2)    The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a)   an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b)   the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

 (3)    Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.’

16                  The Tribunal delivered its decision on 3 May 2006 and it was received by the applicant on 23 May 2006. The applicant filed his application in the Federal Magistrates Court 267 days later. The applicant clearly failed to comply with the requirements of s 477 of the Act. The application was made 183 days beyond the maximum time permitted for the lodgement of an such an application.

17                  The Full Court in SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39 at [57]–[67] considered the text of a statutory provision similar to s 477 of the Act. Their Honours found that the time limits in s 477 of the Act were to be applied strictly. At [67] Buchanan J said that there was ‘no doubt about the effectiveness or validity of the restrictions upon the jurisdiction of the Federal Magistrates Court imposed by s 477 of the Act.’

18                  It follows that Scarlett FM had no power to extend the time limits for the lodgement of the application for review and accordingly there was no error in his Honour’s decision.

19                  The applicant submitted that he was unaware of the time limits for seeking judicial review of the Tribunal’s decision and says that he relied upon his migration agent. The applicant, however, does not make a claim of procedural unfairness due to the conduct of his migration agent. The issue of default by a migration agent was considered in SZFOG v Minister for Immigration and Multicultural Affairs [2006] FCA 1170. The Court in that case noted the decision of Dowsett J in B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30. His Honour found that failures by a migration agent could not constitute a failure of the Tribunal in its obligation to afford an applicant procedural fairness. Numerous authorities were cited in support of this proposition: see NADK of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 184; SZEYH v Minister for Immigration and Multicultural Affairs and Another (2006) 150 FCR 397; Al-Mehdawi v  Secretary of State for the Home Department [1990] 1 AC 876.

20                   The Court has considered the grounds which the applicant included in the draft Notice of Appeal. They allege a breach of s 424A(1) of the Act due to the Tribunal’s reliance on independent country information and failure to allow the applicant an opportunity to respond to such information. The applicant also alleges that ‘“similar claims information” [was] used at the hearing’. He claims that the Tribunal relied upon a statement by him which was provided to the Department only and not to the Tribunal.

21                  In answer to the first of the intended claims the Court observes that s 424A(3)(a) of the Act provides an exception to the requirements of s 424A(1) so that the Tribunal was not required to put this information to the applicant. In answer to the second of the intended claims, the Tribunal records that:

‘The applicant confirmed the accuracy of the information contained in his application for a protection visa and the accompanying statement.’

Accordingly the applicant republished to the Tribunal the information provided to the delegate: see SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034. It follows that neither ground of the proposed appeal would have any prospect of success. Accordingly the Court will dismiss the application.

22                  The Minister has sought an order for costs in the sum of $1275. Since this is within a reasonable range for costs the Court will make the order sought.

Associate:

Dated:         25 May 2007