FEDERAL COURT OF AUSTRALIA

SZKOP v Minister for Immigration and Citizenship [2007] FCA 1650

IMMIGRATION – application for leave to appeal from a decision of the Federal Magistrates Court to dismiss an application for judicial review for failure to raise an arguable case for relief – leave granted and appeal allowed instanter – matter remitted to the Federal Magistrates Court for hearing

Migration Act 1958 (Cth), s 424A

Federal Magistrates Court Rules, r 44.12

SZKOP v Minister for Immigration [2007] FMCA 1336 reversed  

SZKOP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1675 OF 2007

GYLES J

1 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave to appeal be granted. 

2.                  The rules of Court as to the institution and preparation of the appeal be waived.

3.                  The appeal be heard instanter.

4.                  The evidence and arguments on the leave application be evidence and arguments on the appeal.

5.                  The appeal be allowed.

6.                  The costs of the application for leave and the appeal be the applicant/appellant’s costs in the hearing in the Federal Magistrates Court proceedings.

7.                  The orders of the Federal Magistrates Court of 31 July 2007 be set aside.

8.                  The matter be remitted to the Federal Magistrates Court for hearing.

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 Smith FM (SZKOP v Minister for Immigration [2007] FMCA 1336) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 March 2007, which affirmed the decision of the delegate of the Minister not to grant the applicant/appellant a protection visa.  The matter was dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules, on the basis that the applicant/appellant had not raised an arguable case for the relief claimed.

2                     The application to this Court raises two issues, each of which was dealt with by the learned Federal Magistrate.  One can be put aside immediately, that is, the reference to the consequences of the one child policy.  The claim that is made is that the review was unfair as the applicant/appellant was refused an opportunity to provide further details about his breach of the one child policy.  He says that he did provide evidence that his family breached the one child policy and had been heavily fined, but he says the Tribunal refused to hear more from him.  The Tribunal said on this topic:

“At the hearing the Applicant made passing reference to having breached the one child policy and having been fined for this reason.  He did not identify this as a reason for fearing future harm in China when asked at the start of the hearing why he feared to return.  Given the brevity and lack of detail volunteered by him on this issue I am not satisfied that he was, in fact, fined for breaching the policy.”

3                     It does not follow, of course, that being fined for breach of a general law of the country is serious harm or gives rise to a well-founded fear of persecution as required but, in short, there is no evidence that the Tribunal refused to hear more from him.  It is the applicant/appellant’s obligation to produce all the material which is relevant to his case.  If there was a case being made of literally being stopped from doing something, that would have required the adducing of evidence before the Federal Magistrate.  There was no such evidence.

4                     The second issue raised is that the critical basis for the claim was that the applicant/appellant had been a Falun Gong practitioner in China and had suffered as a result of that and that he had a fear that he would suffer serious harm in China for that reason if he returned.  In his application the applicant/appellant said that he had resumed the practice after he came to Australia.  That statement was made very shortly after his arrival in Australia.  A good deal later at the Tribunal hearing he said he only practised for a period when his health was poor.  Whether that relates to China or Australia is slightly doubtful, but then it was said:

“Asked if he had practised in Australia he said he had not and that he no longer practised.”

5                     The Tribunal rejected the claim that the applicant/appellant was a genuine Falun Gong practitioner at all, whether in China or Australia.  The Tribunal dealt with the situation of practise in Australia as follows:

“Given that there are no restrictions on Falun Gong in Australia and that it is practised openly and freely at public sites in Sydney and elsewhere I am not satisfied that there is a basis for concluding that the Applicant has any deep or genuine commitment to the faith or that he would practise it in China but for the fact that to do so could expose him to severe punishment.  Nor am I satisfied, in the light of his failure to take up the faith in Australia, that significant evidentiary weight can be placed on what are no more than simple and unsubstantiated assertions about his earlier Falun Gong practice in China.”

6                     The applicant/appellant’s complaint is that if he had been asked he would have explained that he did not practise in Australia because he was told by his fellow Falun Gong practitioners that the Chinese government had spies in Australia monitoring the Falun Gong and therefore he did not dare practise in Australia.

7                     This complaint is put on the basis that it involves a breach of s 424A of the Migration Act 1958 (Cth).  The issue of practising in Australia was, as has been seen, of relevance to the Tribunal in considering whether or not it should reject the assertions as to his genuine commitment to Falun Gong and his earlier practise of this in China.  It follows that any explanation about that would have been regarded as relevant, whether or not it were to be accepted.

8                     The difficulty that faces the applicant/appellant on this point is that, to establish the point, he would have to prove that he did not have the opportunity to make that explanation. That is not the way the case was apparently presented by him.  There is no tender of the transcript of the proceedings, and generally speaking it is for an applicant to produce all the material relevant to his or her case and to make explanation of matters that emerge in the course of the hearing before the Tribunal.

9                     The other difficulty is that the learned Federal Magistrate could not see that this complaint could be brought within the scope of s 424A(1) because the information relied upon by the Tribunal was information given by the applicant/appellant to the Tribunal, and thus presumably was caught by s 424A(3)(b).  That, of course, gives rise to a question as to what is the “information” referred to in this matter, and also as to the application of subs (3)(b), and, indeed, whether or not the Tribunal was bound to, in effect, provide the applicant/appellant with a commentary upon, or foreknowledge of, its process of reasoning in relation to the basis presented by him.

10                  I am inclined to agree with the learned Federal Magistrate.  The only question in my mind is whether or not the subtleties of s 424A should not be examined as on appeal rather than be dismissed as raising no arguable proposition.  I have no doubt that r 44(12)(1)(a) is a very beneficial procedure.  In my opinion, however, under all of the circumstances, there was just enough substance in the absence of invitation to give this fairly obvious explanation to cause the matter to be considered as on appeal.  However, a further question arises as to the correct procedure from here on.

11                  Following what I had to say in substance, argument has ensued as to the proper order to make in the circumstances.  The situation is a little unusual.  As I have indicated, the Federal Magistrate was engaged upon an application for an order to show cause pursuant to r 44.12 of the Federal Magistrates Court Rules.  At such a hearing, the Court may:

“if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application;”

Such a dismissal is expressly interlocutory (r 44.12(2)).  This procedure is akin to the procedure used in a number of places in connection with administrative law challenges, and, indeed, akin to the procedure in the High Court.

12                  Dismissal of an application on the basis that there is no arguable case for the relief claimed is a pre-emptory dismissal of the proceeding and is not a final disposition of the matter in the strict sense.  The reasons given by the Federal Magistrate in this case are pre-emptory and not such as might be given on a final hearing.  That, indeed, is the whole purpose of a show cause application: to filter out those cases which do not warrant the attention of the Court.

13                  I mention this because if, as I think, there is an arguable case that the Federal Magistrate was too ready to dismiss, then the appropriate order is that that dismissal be discharged, and the matter then be dealt with as if it were not appropriate to dismiss it.  In other words, it should be heard by the Federal Magistrates Court.  Under no circumstances should this Court on appeal step in and decide the merits of the matter.  That being the case, in my view, the most economical course would be for the matter to be returned to the Federal Magistrates Court and dealt with as if there had been no summary dismissal of it.

14                  Technically, it seems to me, I have to grant leave to appeal to this Court, then there would have to be an appeal to this Court which would not decide the merits of the case but would decide the same kind of issue as I have had to decide, namely, whether or not the learned Federal Magistrate in this case was too Draconian in his use of the summary dismissal power.  It seems to me there is also a significant policy issue here.  It should not be sufficient to merely bring the matter up to this Court on a leave to appeal and then expect this Court to deal with the substance of the matter.

15                  My disposition, therefore, is to grant leave to appeal, dispense with the rules relating to the preparation and presentation of an appeal and treat the arguments which have been advanced on the leave application as being arguments on the appeal.  On that basis, I would maintain the position that the doubts I have expressed as to the appropriateness of the pre-emptory remedy are correct, that the Federal Magistrate’s decision ought be set aside, and the matter returned to the Federal Magistrates Court for hearing.  It seems to me that limits the costs which will be occasioned, and places the matter back where it should be, for hearing in the Federal Magistrates Court.  The solicitor for the Minister does not consent to this course, but it seems to me that the utility of the situation makes it most desirable.

16                  The orders of the Court are:

(1)               Leave to appeal be granted. 

(2)               The rules of Court as to the institution and preparation of the appeal be waived.

(3)               The appeal be heard instanter.

(4)               The evidence and arguments on the leave application be evidence and arguments on the appeal.

(5)               The appeal be allowed.

(6)               The costs of the application for leave and the appeal be applicant/appellant’s costs in the hearing in the Federal Magistrates Court proceedings.

(7)               The orders of the Federal Magistrates Court be set aside.

(8)               The matter be remitted to the Federal Magistrates Court for hearing.

Associate:

Dated:         6 November 2007