SZIZF v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 17 January 2007 the Federal Magistrates Court made orders dismissing an application brought by the appellant for judicial review. The appellant, as applicant, was ordered to pay the Minister's costs fixed in the sum of $3,500. In circumstances which are recounted in my reasons for judgment on 30 April 2007, the applicant sought, some nine weeks out of time, an application for an extension of time to file a notice of appeal. In orders that I made on 30 April 2007, I granted that extension and on the same day I made a direction under Order 80 that the Registrar approach the New South Wales Bar Association for assistance. My reasons for granting the extension of time need not be repeated save to say that the fundamental issue appeared to be whether or not there had been a breach of s 424A of the Migration Act 1958 (Cth) (the "Act"). The Federal Magistrate, if I may respectfully say, in her customarily careful and thorough reasons, said at [20] the following: The information about not attending church is clearly information that was given to the Tribunal in the course of the Tribunal hearing. However, the Tribunal also referred to the month and year of arrival in Australia: May 2005. There is no transcript of the Tribunal hearing before the court. It appears that the information as to the month in which the applicant arrived in Australia was information given to the first respondent in connection with the protection visa application, but not also given to the Tribunal (see MIMIA v Al Shamry (2001) 110 FCR 27). 2 The submissions in resisting the application for leave to appeal highlighted, perfectly properly, the delay as well as the correctness as asserted of the Federal Magistrate's reasons. Those reasons, as a reading of them will indicate, were to the effect that information which was identified in [20] of the Federal Magistrate's reasons was not the reason, or a part of the reason, for the decision. As any passing familiarity with the jurisprudence on the section will indicate, the assessment of that question once other aspects of s 424A have been satisfied is always a troublesome issue. As I said in my reasons on the extension application in [3], it is unnecessary to rehearse the difficulty that this section can cause in application. I also indicated that I had considered the reasons of the Federal Magistrate and, as I said respectfully, there was much to commend their correctness. I then identify in particular an argument as to s 424A of the Act. Dr Griffiths SC accepted the task of representing the appellant on the appeal pursuant to a request to the Bar Association made under Order 80 of the Federal Court Rules. He identified the issue in an amended notice of appeal which was filed on 7 June 2007; and he provided on 9 July 2007 a detailed outline of submissions. Since 30 April 2007 when I made the orders indicating an extension of time, there has been, if I may respectfully put it, a further complication in relation to this area of discourse in relation to the series of dicta in the majority judgment of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Whilst the majority in that decision indicated that they were not opining upon the correctness or otherwise of the Full Court's decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] FCAFC 2, their Honours identified in a series of statements a number of matters which might be seen to undermine the authority of SZEEU [2006] FCAFC 2. How those matters affect the jurisprudence is a matter of some lack of clarity at the moment. 3 However, in the preparation of the appeal, the Minister's counsel indicated that it proposed to put on a notice of contention to raise a fundamental problem for the appellant's argument as being propounded by Dr Griffiths. That fundamental difficulty has its source on the fifth page of the Tribunal's reasons where the Tribunal recounts that the applicant's statement had been submitted to the Tribunal thereby invoking, it might be thought, the proviso found in subsection (3)(b) of s 424A. When one turns to the submissions put to the Federal Magistrate by Ms Clegg, who was counsel for the Minister, one finds in [18], [19] and [20] the following: Second, andin any event, to the extent that there was 'information' used by the Tribunal it was information that as given to the Tribunal by the applicant for the purposes of the application for review and was excluded from the requirement under s 424A: s 424A(3)(b). The Minister notes that the applicant provided the Tribunal with a copy of his written statement, so to the extent that there may have been any reliance by the Tribunal on information contained in the applicant's written statement, it was unnecessary to comply with s 424A: s 424A(3)(b). Thus, any dialogue or discussion between the applicant and Tribunal concerning the contents of the written statement would not attract the Court's attention. The Minister notes that there is a reference to the applicant's date of arrival in Australia at CB 79.2. This information may have been obtained from the protection visa application and not from the applicant. However, the Minister submits that this information was not information that "would the reason, or part of the reason, for affirming the decision that is under review". In such a case the words of Allsop J in SZEEU at [216] are pertinent: 'One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason).' 4 I should say immediately that I am not in the slightest being critical of Ms Clegg in relation to her submissions. It can be seen that the point as to the proviso was taken in [18] and [19] but the text at [20] does appear to be foundation as to the Magistrate's conclusions in [20] of her Honour's reasons. 5 Dr Griffiths has considered the matter and asked for some time to consult with the appellant who had been in detention though no longer is, but appeared today at the hearing. After Dr Griffiths had an opportunity to speak to the appellant, the appellant has sought to withdraw the appeal and consents to the appeal being dismissed. The appellant, however, seeks an order that there be no order as to costs. The Minister seeks his costs. 6 The reason for my detailing the history of the matter and how it has come here is not to be critical of anyone, not least of all Ms Clegg for her careful submissions or the Federal Magistrate for her careful reasons, but the fact is that there is a fundamental problem with the issue that I identified in April 2007 and which has been clearly brought to the Court's attention in the proposal to submit a notice of contention. It is unfortunate that both sides have expended costs and the Court has gone to the expense and trouble of arranging the appeal but it seems to me that of all involved, the person who is least responsible for this is the appellant, who is a Chinese national with no legal training, who appeared for himself before the Federal Magistrate. 7 Section 43 of the Federal Court of Australia Act 1976 (Cth) gives a wide discretion to order costs. The overriding consideration is not the application of legal rules and precedent but the doing of justice between the parties according to law. It goes without saying that in the usual course a party who abandons an appeal will pay the costs of it subject to negotiated agreement to the contrary. But in all circumstances, bearing in mind the position of the appellant, his attitude to the appeal once experienced counsel had explained the position to him and the confusion that has arisen in relation to the matter during the course of the exercise of judicial power by the two Courts, I think it would be an injustice to require the appellant to pay the first respondent's costs. I think the history of the matter that I have recounted takes the matter out of the ordinary, rather than the usual cases by way of abandonment. 8 My reasons should be understood as being critical of no one in this litigation, the Federal Magistrate, counsel, solicitors or the appellant. If anyone is to blame for it, it is I. However, of all the people seeking to ensure that the judicial power of the Commonwealth was properly exercised in this case, I think the appellant stands in the position of being least responsible for this litigation progressing as it has and, as I said, I think it would be an injustice to order him to pay the costs of the appeal. Therefore the orders that I make are: (1) The appeal be dismissed. (2) There be no order as to costs as to the appeal, including the application for leave to appeal. 9 The Court expresses its gratitude to Dr Griffiths for his willingness to appear and his precise and thorough assistance. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .