MZXIW v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2007-02-14|Before: Jacobson JJ, Graham J, Kenny J, Sundberg J

REASONS FOR JUDGMENT 1 These are two appeals from decisions of a Federal Magistrate summarily dismissing the appellants' applications for review of a decision of the Refugee Review Tribunal ('Tribunal'). His Honour summarily dismissed the application under r 13.10 of the Federal Magistrates Court Rules 2001. No application for leave to appeal from this decision has been made. 2 The first respondent submits that summary dismissal under r 13.10 is an interlocutory decision and therefore s 24(1A) of the Federal Court of Australia Act 1976 operates to require the appellant to obtain leave from this Court before an appeal can be brought. The Federal Magistrate was of the view that summary dismissal under r 13.10 may "arguably" be regarded as a final, and not interlocutory, decision. 3 In NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395, Sackville, Allsop and Jacobson JJ said at [6] that "an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties." However in two recent cases, single judges of this Court have specifically considered the nature of summary dismissal under r 13.10 and concluded that it is final in nature: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] per Graham J; MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] per Kenny J. 4 I consider it appropriate to follow the more recent and directly relevant decisions of Graham J and Kenny J. In those circumstances the appellant does not require leave to appeal.

The federal Magistrate's decisions 9 The Federal Magistrate delivered separate judgments in respect of the two appellants. His substantive reasons are contained in the son's judgment. The mother's judgment merely notes the minor differences in the two cases and otherwise adopts and applies the reasoning in the son's case. 10 His Honour summarily dismissed both appellants' applications under r 13.10 of the Federal Magistrates Court Rules 2001. That rule reads as follows: "The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim to relief; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of process of the Court." 11 His Honour relied on both (a) and (b) in dismissing the applications. The son's amended application before the Federal Magistrates Court reads as follows: "The Refugee Review Tribunal has made an unacceptable mistake by not accepting as a truth that I am a subject of discrimination in Bulgaria due to being a homosexual, without having proof. It also does not accept the grounds of my Romany origin and being of Communist descendent, which creates a real threat to my life in Bulgaria, well known at present as one of the most dangerous countries of the world. But I believe Australia is a democratic country and the Federal Magistrates Court will revise and rectify the mistakes allowed by the Refugee Review Tribunal." 12 The mother's amended application reads as follows: "The Refugee Review Tribunal has made a very serious mistake by not accepting as a truth that I am of Romany origin, without having proof of that. It also does not accept the second very important reason, because of which I am subject of discrimination in my home country Bulgaria - the fact that I come from a family which is known to have communist convictions. Due to the above stated reasons, my life is seriously endangered in Bulgaria, one of the most dangerous countries in the world. The Refugee Review Tribunal is at fault too by not accepting my last reason - my son, who is discriminated as a homosexual. I do hope, as well as my son does, that Australia is a truly democratic country and that the Federal Magistrates Court will grant us with an visa permanent to remain in Australia." 13 His Honour found that the amended applications did not provide any particulars to support any grounds justifying judicial review. He found that there was no material before him to make out jurisdictional error on the part of the Tribunal. 14 The Federal Magistrate recorded a submission made by the appellants that they were unaware of the significance of marking the box indicating that they did not wish to be present at a hearing, and that the documents they were provided by the Tribunal did not clearly set out the consequences of failing to attend. His Honour was also alert to an argument regarding the sufficiency of the materials to assist a non-English speaker. His Honour stated: "I can see no further action which the First Respondent or office of the Department could take to bring to the attention of a non-English speaking Applicant the importance of the letter and the significance of the hearing. If the Applicant had chosen to arrange interpretation of the letter, then I am further satisfied that the letter itself very clearly stated that the Tribunal is unable to make a favourable finding on the information it then had available. If translated, then at the very least the first sentence of the letter would have alerted the Applicant to the distinct possibility that an adverse decision would be made in the absence of further material and/or the attendance of the Applicant at a hearing." No error is shown in this approach.

GroundS of appeal 15 Under the heading "Grounds" in the son's notice of appeal is written the following: "I am subject of DISCRIMINATION because I am a homosexual. It also does not accept (FMCOA) the grounds of my Romany [gypsy] origin and being of Communist descendent, which creates a real threat to my life in Bulgaria." 16 Under the heading "Grounds" in the mother's notice of appeal is written the following: "The Federal Magistrates Court of Australia has made mistake by not accepting that I am of Romany origin. It also does not accept the reason, because of which I am a subject of a discrimination in my home country, the fact that I come from a family, which is known to have communist convictions. Due to the above stated reasons, my life is seriously endangered in Bulgaria. The Federal Magistrates Court of Australia by not accepting my last reason my son, who is discriminated as a homosexual." 17 The only complaint revealed by the notices of appeal is that the Federal Magistrate erred in not finding that the appellants were gypsies with a Communist ancestor, and in the case of the son, that he was a homosexual. These complaints seek merits review, which is not available in this Court. They complain that the Federal Magistrate did not conduct merits review, which he was not able to do. No error of law is raised by the notices of appeal. 18 I therefore agree with his Honour that no reasonable cause of action was disclosed and that the applications had no reasonable prospects for success. There was no error in his Honour summarily dismissing the applications under r 13.10(a). It is not necessary for me to express a view on whether the applications were also frivolous or vexatious.

Disposal 19 For the reasons I have given at [4], the appellants do not require leave to appeal the decisions of the Federal Magistrate. The appeals that have been brought must be dismissed. If in fact summary dismissal under r 13.10 is interlocutory in nature, then leave to appeal would be required and, any application for such leave now being out of time, an extension of time is also required. Since the appeal has no prospects of success, I would not have granted an extension of time. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Respondent: Australian Government Solicitor

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