FEDERAL COURT OF AUSTRALIA

SZOBI v Minister for Immigration and Citizenship [2010] FCA 1026

THE COURT ORDERS THAT:

1.                  The hearing of the appeal be adjourned to a date to be fixed in the Full Court sittings of the Court in November 2010.

2.                  The appellate jurisdiction of the Court, in relation to the appeal, be exercised by a Full Court.

3.                  There be no order as to the costs of the first respondent’s notice of motion of 27 August 2010, and the notice of motion be otherwise dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     By a notice of motion dated 27 August 2010 the first respondent, the Minister for Immigration and Citizenship, (“the Minister”), seeks an order pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), that the appellate jurisdiction of the Court in relation to the appeal be exercised by a Full Court.  The substantive proceeding is an appeal from a decision of a Federal Magistrate (SZOBI
v Minister for Immigration and Citizenship [2010] FMCA 259) refusing relief in relation to a decision of the Refugee Review Tribunal (“the Tribunal”).

2                     The Tribunal had determined that it had no jurisdiction to consider the appellant’s application for a review of the decision of a delegate of the Minister to refuse the appellant’s application for a protection visa (“the refusal decision”).  The basis upon which the Tribunal refused to exercise jurisdiction was that the appellant’s application was out of time.  Whether or not the Tribunal was right depends upon whether the appellant was properly notified of the refusal decision in accordance with ss 66(1) and 494B of the Migration Act 1958 (Cth) (“the Migration Act”) on the date relied upon by the Minister.  That question depends upon the resolution of competing submissions as to the proper construction of s 494B(4) of the Act.

3                     On 3 August 2010, I commenced to hear the appellant’s appeal.  The appellant was not legally represented at that time.  In the course of submissions made by counsel for the Minister, questions about the proper construction of s 494B(4) arose.  Counsel indicated that further consideration needed to be given to that issue and sought leave to file and serve a written submission on a proper construction of s 494B(4).  I acceded to that application and made orders for the exchange of written submissions on the basis that no further oral hearing was necessary and that my judgment in the matter would, thereafter, be reserved.

4                     Prior to the due date for the delivery of written submissions from the appellant, the Minister filed its notice of motion.  Section 25(1AA) of the Federal Court Act provides as follows:

The appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by:

(a)  a single Judge; or

(b)  if a Judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court – a Full Court.

5                     I am satisfied that despite the hearing that occurred on 3 August 2010, I have the power to rescind the reservation of my judgment and to order that the appellate jurisdiction of the Court in relation to this appeal be exercised by a Full Court.  An order was made by Gyles J pursuant to s 25(1AA) in similar circumstances in SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193; see also SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1 at [2].  At the time the Minister’s notice of motion was filed, the hearing of this appeal before me had commenced but was not completed.  That remains the case.

6                     Whilst I have entered upon the exercise of the appellate jurisdiction of the Court, the exercise of that jurisdiction, involving as it does both the hearing and the determination of the appeal, is far from complete.  The power to make an order under s 25(1AA)(b) subsists whilst the appellate jurisdiction of the Court has not been exercised to finality.  The terms of
s 25(1AA) do not suggest otherwise and that construction is consonant with the underlying policy of the provision, which is to facilitate a Full Court hearing and determining an appeal appropriate for determination by a Full Court.

7                     The lateness of any application and any prejudice that may consequently be occasioned upon either the parties or the further disposition of the appeal is a matter that can be addressed in the exercise of the discretion, which s 25(1AA)(b) confers. 

8                     The criterion for the exercise of the discretion conferred by s 25(1AA)(b) is that a judge considers that it is appropriate for the appellate jurisdiction of the Court, in relation to the appeal, to be exercised by a Full Court.  In this case it seems to me that the two factors most relevant to the determination of whether the order sought is appropriate, are: 

(1)        whether an important question of law arises for determination;  and

(2)        whether there is any prejudice to either party or to the disposition of the appeal.

9                     The Minister and the appellant agree, and I concur, that the proper construction of
s 494B of the Migration Act gives rise to an important question of law, given the centrality of the scheme of notification and deemed receipt to the proper administration of the Migration Act.  I accept the Minister’s contention that the position of many other persons may be affected by the disposition of this appeal and that a decision adverse to the Minister may have widespread consequences.  I am satisfied that there is no prejudice to the disposition of the appeal should the order sought be made.  There is a potential for a cost prejudice to the appellant but that has now been addressed by undertakings given by counsel for the Minister at today’s hearing.

10                  I will make orders to facilitate this appeal being heard and determined by a Full Court.

Associate:

Dated:         17 September 2010