MZXGP v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for leave to appeal from a decision of a Federal Magistrate dismissing an application for judicial review pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules. 2 The circumstances of the case are these. The applicant filed an application for judicial review on 27 January 2006 in the Federal Magistrates Court. He sought review of a decision made by the Refugee Review Tribunal on 6 December 2005, affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. In support of his application, and pursuant to r 44.05(2) of the Rules, the applicant filed an affidavit which said virtually nothing of substance about his complaint concerning the Tribunal's decision although it did assert two grounds. Part 44, which is constituted by the whole of r 44, is a special part of the Rules applicable only to migration cases: see r 44.02. 3 The Minister filed a response on 9 February 2006 under r 44.06, opposing the application. The grounds put forward by the Minister are set out in the reasons for judgment of the learned Federal Magistrate. 4 The matter came before the Federal Magistrate on 2 March 2006. This was the 'first court date': see r 44.11. The solicitor appearing for the Minister submitted that the applicant was merely seeking merits review, but she did not, as I was told by counsel for the Minister today, urge that the matter proceed immediately to a show cause hearing: see r 44.11(a). 5 The Federal Magistrate invited the applicant (quoting from her Honour's reasons) 'to put forward an oral argument in this show cause hearing'. It thus appears that her Honour had determined that there should be an immediate show cause hearing under r 44.12: see r 44.11(a). This meant that if the applicant was unable to raise an arguable case for the relief he claimed, it would be open to her Honour to dismiss the application without proceeding to a final hearing. The Federal Magistrate explained to the applicant that she had taken this course because, on her reading of his application and the Tribunal's decision, it appeared to her that no arguable case could be demonstrated. 6 The applicant then addressed the court through an interpreter. He was, however, unable to elaborate upon his complaints, which included that the Tribunal decision was 'made with error of law'. 7 The Federal Magistrate considered the Tribunal's reasons and concluded that no arguable case had been disclosed in the application or by the oral argument. Accordingly, the application was dismissed. A dismissal under such circumstances is characterised by the Rules as 'interlocutory': r 44.12(2) so provides '[t]o avoid doubt' (sic). 8 In documents filed prior to this hearing and in his oral submissions made today in Court through an interpreter, the applicant says, in effect, that he was taken by surprise by what occurred before the Federal Magistrate. He submits that he had no prior notice that what occurred at the hearing might happen and that, basically, he attended court thinking that the hearing before the Federal Magistrate was, in essence and as I understand him, a procedural formality. 9 The problem he faced before the Federal Magistrate was that he had made claims that were difficult to comprehend and which had not been formulated with any degree of persuasiveness or particularity. The applicant says, and I have no reason to disbelieve him, that he asked the Federal Magistrate if he could submit further particulars. In fact, in support of his application for leave to appeal he has produced, evidently with the help of another person, an affidavit and some written submissions that are intelligible. In their totality these documents suggest that, if he had been given prior notice that on his first appearance before the Federal Magistrate his case was liable to be dismissed at an immediate show cause hearing, there were things that he might have said that might at least have indicated that he had an arguable case which should have been considered at a full hearing. This case stands in contrast to those in which formulaic submissions are put forward, having no apparent relevance to the matter before the court. 10 I can well understand the course that the Federal Magistrate took, faced as she no doubt was, with a very large number of applications to review decisions of the Tribunal and the need to dispose of them all fairly and efficiently. I am nevertheless uneasy about what happened in this particular case. The applicant claims that it was, in effect, unfair to him, and I am persuaded that in the particular circumstances he may be right. 11 Ms Burchell of counsel, in an admirably clear and concise submission on behalf of the Minister, acknowledged that that the applicant may have been taken by surprise at the first hearing before the Federal Magistrate. She submitted, however, that if one looks at the whole of the facts of the case, as the Federal Magistrate did, there was nothing useful that the applicant could have said, even if he had been given an opportunity to do so. 12 Ms Burchell also submitted that the two established principles upon which leave to appeal is normally granted or refused in this Court pointed against the grant of leave: see Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. The Full Court (Sheppard, Burchett and Heerey JJ) in that case considered, however, that the applicable test for the grant of leave should not be exhaustively applied in all cases, and that the Court retained an 'unfettered discretion' as conferred on it by s 24(1A) of the Federal Court of Australia Act 1976 (Cth): see at 399. The Full Court observed (at 399-400) that, subject to the consideration that the legislature has evinced a policy preference against the bringing of interlocutory appeals except by the grant of leave, 'there will continue to be cases raising special considerations, and the court should not regard its hands as tied'. In all cases leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: see Décor Corporation at 400; Eltran Pty Limited & Ors v Westpac Banking Corporation & Ors (1988) 32 FCR 195 at 202 (Spender J). 13 Although r 44.12(2) characterises the decision of the learned Federal Magistrate as interlocutory, the practical effect was that the applicant's case was determined substantively. My concerns about the potential unfairness, as a practical matter, of what occurred here are such that I consider that the appropriate course is to grant leave to appeal. There should, however, be no delay. Subject to hearing from the parties, I propose to have the matter listed for hearing at an early date. 14 I should also add that if those advising the Minister have in contemplation the possible operation of r 44.12 at the first court date, it would seem prudent to give a prior warning to the applicant. The contrary view is of course that, having commenced a case in the Federal Magistrates Court, an applicant should be taken to know what the procedural requirements might be. Since, however, r 44.11 does not mandate the immediate application of r 44.12 at the first court date but indeed contemplates the possibility of the provision of particulars (r 44.11(g)) and a separate show cause hearing at a future date (r 44.11(b)), it seems to me that to give such warning - even if relatively informally (as in a letter) - is not a burdensome task for the Minister to undertake and may well be desirable. 15 For these reasons I would allow the application for leave to appeal. Costs will be reserved. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.