FEDERAL COURT OF AUSTRALIA

SZKKT v Minister for Immigration and Citizenship [2007] FCA 1128

SZKKT, SZKKU, SZKKV AND SZKKW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 831 OF 2007

RYAN J

31 JULY 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The purported appeal by notice of appeal filed 11 May 2007 be dismissed.

2.         The first and second appellants pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     There is before the Court a purported appeal from orders made by a Federal Magistrate on 14 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 26 October 2005 and handed down on 17 November 2005.   The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant a protection visa of the appellants. 

2                     The appellants are nationals of South Korea and are husband, wife and their two daughters.  Only the appellant husband (“the appellant”), made a substantive claim to refugee status so that the applications of his wife and daughters, as members of his family unit, depended on the outcome of the application of the appellant.

3                     In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution by reason of his attempt to report the activities of the Manmim Central Church relating to brutality and sexual abuse.  The appellant claimed to be afraid that members of that group would kill him and that the South Korean authorities could not protect him. 

4                     In its findings and reasons the Tribunal recorded that it had written to the appellant by letter advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone.  The Tribunal then invited the appellants to give oral evidence and present arguments at a hearing to be held on 25 October 2005.  The appellants did not appear before the Tribunal and, accordingly, in the circumstances and pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal proceeded to make a decision without taking any further action to enable the appellants to appear before it. 

5                     In the original application to the Federal Magistrates Court filed on 30 March 2007, it was claimed that the appellant had been denied natural justice because he had been unable to present his case before the Tribunal.  The appellant also claimed that the Tribunal may not have properly notified him of the hearing and all the information provided to the Department had not been considered by the Tribunal. 

6                     The Minister, on 12 April 2007, filed a notice of objection to competency in the Federal Magistrates Court contending that the appellants had received actual notification of the decision on 15 November 2006.  That accorded with the insertion in the body of the application under the heading “Date when Notification of the Decision was Received by the Applicant,” of the date “15/11/06”.  Accordingly, the Minister’s notice of objection to competency asserted that, contrary to the requirements of s 477(1) of the Act, the application for judicial review had not been made within 28 days of 15 November 2006 and that, by virtue of subss 477(2) and 477(3) of the Act, the power of the Court to extend time did not extend beyond 7 February 2007.   The application had, in fact, been filed on 30 March 2007. 

7                     The learned Federal Magistrate considered that the application for judicial review was out of time and that the Court had no power to grant an extension of time.  The application was, accordingly, dismissed for want of jurisdiction.  The appellants then, on 11 May 2007, filed a notice of appeal to this Court which invoked the following grounds of appeal;

‘1.Not all the information the application submitted to Department of Immigration in conjunction with the protection visa application was considered by tribunal according to law. 

2.  Federal Magistrate Court made a jurisdictional error by appointing Ms Kinslor as my representative whom I never met before and never authorised to be my representative.’

8                     On 18 May 2007, the Minister filed a notice of objection to competency in this Court contending that the appellants purport to appeal from an interlocutory judgment of the Federal Magistrates Court dismissing their application to that Court for want of jurisdiction.  On 30 May 2007, Registrar Farrell made directions to ready the purported appeal for hearing which included the following;

‘4.           Not later than five clear working days before the hearing date the applicant file and serve full written submissions upon which the applicant seeks to rely in support of the application and in support of any appeal were the court to grant an extension of time and/or leave to appeal so that the court is able to assess, in the application, whether there is any utility in granting the extension of time and/or leave to appeal.’

9                     It can be seen from that formulation that, although the application to this Court was in form an appeal, the learned Registrar perceived that it sought a review of an interlocutory order of the Federal Magistrates Court and, accordingly, that leave to appeal and possibly an extension of time for that purpose would be required before the substance of the appeal could be examined by this Court.  At all events, it appears that no attempt was made by the appellants to comply with that direction of Registrar Farrell and the appellants have failed to appear today which was the date allocated for the hearing of their proceeding in this Court.

10                  Since the hearing in the Federal Magistrates Court, it has come to the notice of the solicitors for the Minister that the “concession” on which the learned Federal Magistrate relied in upholding the objection to competency may not have accorded with the facts.  That concession was to the effect that notice of the decision of the Tribunal was actually given to the appellants on 15 November 2006.  In fact, information now in the possession of the Department, but not before the Federal Magistrates Court, indicates that none of the appellants attended at the Tribunal on the handing down of the decision and that the Tribunal’s decision statement was not delivered by hand personally to any of the appellants.

11                  That new information makes applicable to the present case the reasoning of a Full Court of this Court in Minister for Immigration and Citizenship v SZKKC (2007) FCA FC 105 where Buchanan J, with whom Gyles and Jacobson JJ agreed, observed at [49];

‘It follows from the earlier analysis that I would reject the Minister’s submissions and the construction urged by him in its various and alternative aspects.  The result is that the substance of the requirements stated by the High Court in WACB remains, in effect, despite the commencement of Division 7A and the repeal of s 478 in its earlier form.  For the purposes of s 477 actual notification to an applicant of a decision of the RRT must be accomplished by physical delivery of a written statement prepared by the RRT in accordance with s 430(1), to the applicant personally.’

12                  Mr Markus, who appeared as Counsel for the Minister, accepts that the conclusion of the Full Court in SZKKC is binding on me sitting as a single Judge, albeit on a purported appeal from the Federal Magistrates Court.  In these circumstances, it might have been argued that each of the limbs of the test enunciated by another Full Court of this Court in Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 had been satisfied.  In that case, the Court, after referring to the judgment of a Full Court of the Supreme Court of Victoria in Nehman v Electronic Industries Limited (1978) VR 431 said, at 398;

‘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”.’

13                  The matters to which Mr Markus for the Minister has very properly drawn my attention raise sufficient doubt about the correctness of the decision of the Federal Magistrates Court upholding the Minister’s objection to competency to warrant its reconsideration on appeal.  Secondly, because the effect of the decision of the Federal Magistrates Court was, in one respect, to shut out the appellants altogether from judicial review of the decision of the Tribunal, it cannot be said that substantial injustice would not result if the presumptively wrong decision of the Federal Magistrates Court were allowed to stand. 

14                  However, Mr Markus points to the failure of the appellants to comply with the directions of Registrar Farrell, which I have earlier set out, and their failure to appear on the hearing of the appeal today as justifying an order of the kind contemplated by s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).   That subsection and paragraph provides that a single Judge or a Full Court may; 

‘1.1      Make an order that an appeal to the court be dismissed for:

1.1.1         failure to comply with a direction of the court or

1.1.2         failure of the appellant to attend a hearing relating to the appeal.’

15                  I consider, despite the complication which has been introduced by the recent decision of the Full Court in SZKKC, that it is a proper exercise of the Court’s discretion to make an order dismissing the purported appeal pursuant to s 25(2B)(bb).  That exercise of discretion is warranted, I believe, by the apparent deliberate or, at least, unexplained decision of the appellants not to comply with the directions of Registrar Farrell and not to attend the hearing of their purported appeal today.  In addition, a potent ground for exercising the Court’s discretion in the way that I have indicated is that, having regard to the failure of the appellants to appear as invited before the Tribunal when the foundational decision to refuse them protection visas was made, their prospects of succeeding on the merits in their appeal to the Federal Magistrates Court are weak, to say the least. 

16                  I am also reinforced in my decision to exercise the discretion in this way by the consideration that, if there be some unexplained excuse or justification for the apparent inaction of the appellants, they may make an application under s 25(2B)(bc) of the Federal Court of Australia Act to vary or set aside the order which I propose to make under paragraph (bb) of that subsection.  Accordingly, in the circumstances, I shall order that the purported appeal by notice filed on 11 May 2007 be dismissed and that the first and second appellants pay the Minister’s costs of the proceedings in this Court. 

Associate:

Dated:         2^nd August 2007