COURT OF AUSTRALIA

SZTKB v Minister for Immigration and Border Protection [2014] FCA 653

THE COURT ORDERS THAT:

1.    The Application for leave to appeal is dismissed.

2.    The Applicants are to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Applicants are citizens of India. They are husband and wife.

2    On 24 July 2012 they applied to the Department of Immigration and Citizenship for Protection (Class XA) visas under s 65 of the Migration Act 1958 (Cth) (“Migration Act”). A delegate of the Minister refused those applications on 9 January 2013. The Applicants sought review of the delegate’s decision by the Refugee Review Tribunal. On 2 October 2013 the Tribunal affirmed the delegate’s decision.

3    Judicial review of the Tribunal’s decision was then sought by the Federal Circuit Court of Australia. That Court dismissed the application on 18 March 2014: SZTKB v Minister for Immigration and Border Protection [2014] FCCA 558.

4    On 1 April 2014 the Applicants filed in this Court an Application for leave to appeal together with what purported to be an affidavit in support.

5    The Applicants did not appear before this Court in person. They made submissions by way of telephone and had the assistance of an interpreter.

6    The Application for leave to appeal is to be dismissed with costs.

7    Leave to appeal is required because the Federal Circuit Court Judge dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). That rule provides as follows:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

As r 44.12(2) makes clear, such a decision is interlocutory. See also: SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [20] per Cowdroy J.

8    An appeal to this Court from an interlocutory judgment is not to be “brought …. unless the Court or a Judge gives leave to appeal”: Federal Court of Australia Act 1976 (Cth), s 24(1A). In Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ summarised the circumstances in which leave may be granted as follows:

[4]    In the light of our conclusion that the orders below are interlocutory, it is necessary to consider whether leave to appeal should be granted. That requires application of the test enunciated by another Full Court of this court in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. That test is:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

[5]    As indicated by the conjunctive “and,” that test is cumulative. It is not satisfied unless each limb of the test is made out. …

See also: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [34] per McKerracher J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [30] per Cowdroy J. The onus lies on the party seeking leave to appeal: cf. Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdroy J.

9    In the present case, the application seeking judicial review as filed in the Federal Circuit Court failed to disclose any grounds upon which review was sought. The Affidavit as filed in that Court did little more than annex the Tribunal’s reasons for decision.

10    Notwithstanding these deficiencies, the ex tempore reasons for decision of the Federal Circuit Court Judge reveal a consideration of the Tribunal’s decision, including a review of particular aspects of the decision-making processes of the Tribunal. Included within that review was a consideration of the Tribunal’s conclusions that it was reasonable for the Applicants to relocate to some other place in India to avoid a real chance of harm if they remained in their home area: [2014] FCCA 558 at [4] to [8]. The reasons also record a conclusion that the Tribunal “in a more general sense … understood correctly the test in determining whether relocation was an answer to the applicant’s claim for protection…”: [2014] FCCA 558 at [12]. It was concluded that “the applicants cannot demonstrate an arguable case for the relief which they seek”: [2014] FCCA 558 at [21].

11    Relevantly, no ground of review before the Federal Circuit Court alleged any failure or non-compliance with s 424A of the Migration Act.

12    The Application before this Court seeking leave to appeal from this decision of the Federal Circuit Court fails to comply with r 35.12(2) of the Federal Court Rules 2011 (Cth). Rule 35.12(1) requires an applicant to file an application in accordance with Form 117. Rule 35.12(2) provides as follows:

The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is brought;

(b)    the reasons, if published, for the judgment or order;

(c)    an affidavit stating the facts that support the application;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2); and

(e)    if the applicant wants to have the application considered without oral argument - a statement to that effect.

Form 117 requires (inter alia) an application to set forth the “Grounds of application”. The Application, as filed, fails to set forth any such “Grounds”. But, the draft Notice of Appeal, it should be recognised, sets forth the proposed Grounds of Appeal (without alteration) as follows:

1.    The FC failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (cht) and therefore fall under jurisdictional error.

2.    There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A

Such Grounds of Appeal, it may further be noted, most probably do not comply with r 36.01(2)(c). That provision requires a notice of appeal to state “briefly but specifically, the grounds relied on in support of the appeal”. The proposed Grounds do not identify the “breach” referred to and, more importantly, do not specify the “certain adverse information” referred to. No “information” which could potentially fall within s 424A and which could found an argument as to breach of that provision is readily apparent.

13    But power is conferred upon the Court to dispense with any non-compliance: Federal Court Rules 2011, r 1.34. That rule provides that the “Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises”. With reference to the former rule, namely O 1 r 8 of the now-repealed Federal Court Rules, it was said that there “is no general test to be applied in exercising the discretion… save that the Court ought to do what justice appears to require”: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J. See also: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [61] per Logan and Flick JJ. The same observations are apposite to the discretion now found in r 1.34.

14    There is, however, no reason in the present case to dispense with any non-compliance with r 35.12(2). The fact that the Applicants are unrepresented is not, in itself, sufficient reason to do so. While “a degree of latitude must be afforded to an unrepresented litigant, such status does not confer a license to disregard entirely the procedural requirements imposed by the Federal Court Rules 2011…”: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [30] per McKerracher J. With specific reference to non-compliance with Rules of Court on the part of an unrepresented party, the Full Court has recently reaffirmed the proposition that in future “greater hesitation and caution may be required before too readily departing from the requirements imposed by the Federal Court Rules 2011”: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ. Concern was there expressed (inter alia) as to the need to ensure that the Court is perceived as impartially administering justice and not perceived as favouring the unrepresented party over the represented opponent. It was there said that Rules of Court “are there for the benefit of all parties and the public interest in ensuring the proper administration of justice”: [2014] FCAFC 61 at [30]. But Rules of Court, it should forever be constantly recalled, should not become themselves the “instruments of oppression”: SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [9] per Flick J; Singh v Owners-Strata Plan No 11723 (No 3) [2012] FCA 1121 at [31], (2012) 207 FCR 390 at 396 to 397 per Griffiths J.

15    The fact, however, in the present proceeding is that the Applicants have failed to specify any Ground upon which the Application is advanced. And the proposed Notice of Appeal seeks to raise an argument as to breach or non-compliance with s 424A of the Migration Act in circumstances where no such argument was advanced for resolution before the Federal Circuit Court Judge and where the “adverse information” centrally relevant to either the alleged breach or non-compliance with that provision is neither specified nor ascertainable. Although the prospect exists of an appellant seeking to raise an argument not previously relied upon, leave to do so is required: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ.

16    The Applicants in the present proceeding have had the not inconsiderable benefit of an independent review of the Tribunal’s decision by a Judge of the Federal Circuit Court. In disposing of that proceeding, that Judge has exercised a discretionary power.

17    Now in question, it should be recalled, is not the decision of the Tribunal but the exercise of discretion on the part of the Federal Circuit Court Judge to exercise the power conferred by r 44.12(1) of the Federal Circuit Court Rules. The Applicants have again failed to comply with the Rules of this Court. They were, perhaps not surprisingly, unable to assist in identifying the “information” to which their proposed Ground of Appeal is directed. Even if such “information” could be identified, difficulty could well be encountered in seeking to establish error in the exercise by the Federal Circuit Court Judge of the discretion conferred by r 44.12(1) by failing to resolve or direct attention to an argument that was not advanced.

18    The application for leave to appeal should be dismissed for non-compliance with r 35.12(2) of the Federal Court Rules 2011.

19    Assuming that such deficiencies should nevertheless be left to one side, the approach that has separately been pursued is to review the reasons for decision of the Tribunal and those of the Federal Circuit Court Judge. Informed by the issues identified by the Federal Circuit Court Judge, it is concluded that that decision is, in any event, not attendant with sufficient error (or, for that matter, any error) to warrant the grant of leave to appeal. Nor is the argument directed to s 424A of sufficient merit to warrant the grant of leave to appeal.

20    No error is readily apparent in either the consideration given by the Federal Circuit Court Judge to the reasons for decision of the Tribunal or in the exercise of discretion to dismiss the application then before that Court pursuant to r 44.12(1).

CONCLUSIONS

21    The Application for leave to appeal is without merit and should be dismissed.

22    The real concern of the Applicants, it would appear from their oral submissions made by way of telephone, was not so much with the existing decision-making process but more to the fact that recent elections in India may have had the consequence that the “position has changed”.

23    There is no reason why the Applicants should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The Application for leave to appeal is dismissed.

2.    The Applicants are to pay the costs of the First Respondent.

Associate:

Dated:    20 June 2014