FEDERAL COURT OF AUSTRALIA

SZKCV V Minister for Immigration & Citizenship [2007] FCA 1201

SZKCV AND SZKCW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD938 OF 2007

JESSUP J

7 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The applications for leave to appeal be dismissed.

2.                  The applicants pay the costs of the first respondent fixed in the sum of $800.

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

REASONS FOR JUDGMENT

1                     These are applications for leave to appeal from a judgment of the Federal Magistrates Court of Australia given on 12 May 2007 in which that court exercised its jurisdiction under r 44.12(1)(a) of the Federal Magistrates Court Rules to dismiss the applications of the present applicants for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 14 December 2006, and handed down on 9 January 2007, in which the Tribunal affirmed a decision of the delegate of the respondent Minister not to grant the applicants protection visas under the Migration Act 1958 (Cth) (“the Act”).

2                     Leave to appeal is required because the judgment was interlocutory in accordance with the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), s 24(1A). 

3                     I note that subrule (2) of r 44.12 of the Federal Magistrates Court Rules provides that, “To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.”  With respect to those responsible for making that subrule, it is not immediately apparent to me how the Rules of the Federal Magistrates Court can determine, in a way which is binding on this court for the purpose of s 24(1A) of its own Act, whether a judgment is interlocutory.  The way in which this question has been dealt with in previous judgments of the court has varied.  On some occasions subrule (2) has been adverted to as though it concludes the question whether a judgment by way of dismissal under par (a) of subrule (1), is or is not interlocutory: see SZHVP v MIMA [2006] FCA 1360 at [3] and NBLH v MIC [2007] FCA 209 at [1].  On other occasions, however, the characterisation of such a judgment has been determined as a matter of general principle: see SZHZB v MIMA [2006] FCA 547 and SZHUS v MIMA [2007] FCA 64.  For my own part, I prefer to take the latter approach.  I consider that an order of the kind referred to in r 44.12(1)(a) is interlocutory and I rely, for that conclusion, upon Re Luck (2003) 203 ALR 1 and Rana v University of South Australia (2004) 136 FCR 344.

4                     The judgment below, being an interlocutory one, can be challenged only after leave is granted under s 24(1A) of the Federal Court Act.  The approach which the court takes to applications for leave of that kind is a twofold one.  The court asks, first, whether in all the circumstances the judgment below is attended with sufficient doubt to warrant it being reconsidered and, secondly, whether substantial injustice would result if leave to appeal were refused, supposing the decision below to be wrong: see Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

5                     I consider first the question whether the judgment of the Federal Magistrate was attended by sufficient doubt to warrant being reconsidered by this court.  The applicants’ Draft Notice of Appeal annexed to their Application for Leave filed on 28 May 2007, refers to one ground of appeal only, namely, that the Federal Magistrate failed to find that the Tribunal’s decision was in breach of s 424A of the Act and therefore fell into jurisdictional error.  This ground was particularised by the assertion that there was certain adverse information used by the Tribunal to affirm the decision under review, and that the Tribunal did not disclose that information in accordance with s 424A(1).

6                     The applicants did not file any written submissions or outline of argument by reference to which I would have been able to assess the strength of this ground.  They appeared before me this morning via video-link, and were assisted by an interpreter.  They made very brief submissions in support of their applications, but nothing they said developed or dealt with the single ground which is referred to in their Draft Notice of Appeal.

7                     From the description of the decision of the Tribunal set out in the reasons of the Federal Magistrate, it would seem that compliance with s 424A of the Act was not an issue at any stage.  In the relevant part of his reasons the Federal Magistrate said:

The amended application asserts a breach of s.424A(1) of the Migration Act 1958(Cth) ("the Migration Act"). However, the particulars do not identify in any coherent way the information that the Tribunal relied upon which was allegedly not disclosed. In its decision (court book, page 124) the Tribunal relied upon two inconsistencies between what the applicants had told the Tribunal and what the first applicant had put in his protection visa application. That information was disclosed to the applicants by letter dated 13 October 2006 (see court book, pages 102 and 103).  I am satisfied that that letter met the Tribunal’s disclosure obligation under s.424A. There was no other information relied upon by the Tribunal that required disclosure under the section. Neither is any other jurisdictional error in the Tribunal decision apparent to me.

Nothing which the applicants have put to me shows any error in the way the Federal Magistrate dealt with the question arising under s 424A of the Act.

8                     An appeal from the Federal Magistrate’s judgment to this court proceeds by way of a re-hearing, and requires the establishment of error on the part of the Magistrate.  I am at a loss to understand the applicants’ case on the subject of error in the Magistrate’s reasons.  Accordingly, I hold that there is not sufficient doubt over the judgment of the Federal Magistrate to justify reconsideration by this court.

9                     The question then is whether substantial injustice would result if leave to appeal were refused, supposing the decision below to be wrong.  If the decision below is supposed to be wrong, I accept that the applicants would suffer substantial injustice.  I accept what is implicit in their case, namely, that this is effectively their last opportunity to challenge the Tribunal’s affirmation of the delegate’s refusal to grant them protection visas, and that the practical result is that they will be prevented from remaining in Australia.  I doubt that the respondent Minister would suggest that leave to appeal should be refused if I were persuaded that the decision below was wrong.  However, the test to which Decor Corporation refers involves a balancing of the considerations arising under each of the two limbs, and, in the circumstances of this case, given that I have found that the judgment of the Federal Magistrate is not attended by sufficient doubt to warrant its being reconsidered by this court, I am persuaded that the applicants would not suffer injustice if leave to appeal were refused.

10                  In all the circumstances, I propose to refuse leave to appeal.

Associate:

Dated:         9 August 2007