SZLQW v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant was born in Jakarta, Indonesia, in August 1973. He arrived in Australia on 1 May 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 23 May 2007. He claimed to have a well founded fear of persecution due to official corruption. A delegate refused to grant that visa on 20 June 2007 and an application was made to the Refugee Review Tribunal on 17 July 2007 for review. The Tribunal by way of a decision signed on 5 October 2007 affirmed the decision not to grant the protection visa. 2 An application was thereafter made to the Federal Magistrates Court on 20 November 2007 for review by that Court of the Tribunal's decision. The Federal Magistrates Court dismissed the application: SZLQW v Minister for Immigration [2008] FMCA 782. The Appellant now appeals to this Court. 3 Today, when the matter was called on for hearing, there was no attendance by the Appellant. The Appellant, however, had been advised of the date and time of the hearing of this appeal by way of a letter from the National Appeals Registrar of this Court dated 22 July 2008. On behalf of the First Respondent, an application was then made for the appeal to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Rather than dismissing the appeal, it was considered that the more prudent course was to proceed to hear the appeal in the absence of the Appellant. Such a course is permitted by O 52 r 38A(1)(d) of the Federal Court Rules. Rule 38A provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: (a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or (b) adjourn the hearing; or (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1) (d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal. 4 A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 128; SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1697; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2], 206 ALR 471 at 472 per Finn and Stone JJ. 5 The Grounds of Appeal as formulated in the Notice of Appeal are as follows: 1. The Tribunal failed to carry out its statutory duty as the Tribunal Member failed to fully consider the current situation of Indonesia is unstable and it is dangerous for me to go back to Indonesia. 2. The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe. 6 Both Grounds, it should be observed at the outset, fail to expressly identify any error committed by the Federal Magistrate. By failing to identify any such error, the Appellant has not stated "the grounds relied upon in support of the appeal" as required by O 52 r 13(2)(b) of the Federal Court Rules. A failure to comply with that requirement, however, does not render an appeal incompetent: Zegarac v Dellios [2007] FCAFC 58 at [7] per North J (Weinberg and Jessup JJ agreeing). 7 No jurisdiction is conferred upon this Court to conduct a review of the Tribunal's decision upon the basis invited by the Notice of Appeal. The relevant jurisdiction of this Court is its appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court: Federal Court of Australia Act, s 24(1)(d). See also: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263; SZITO v Minister for Immigration & Citizenship [2008] FCA 758 at [4]-[5], [32] per Greenwood J. 8 Notwithstanding the form of a notice of appeal, it may be that in some circumstances this Court should construe grounds of appeal as but an inelegant attempt to advance a contention that a Federal Magistrate has committed error by not concluding that a Tribunal has committed jurisdictional error. Especially may this be the case where an appellant is unrepresented. But this Court, it is considered, should be astute in ensuring that it is not drawn into exercising an original jurisdiction which it does not possess and an original jurisdiction vested solely in the Federal Magistrates Court: see, ss 476 and 476A of the Migration Act 1958 (Cth). The constraints imposed by the Commonwealth legislature upon the jurisdiction of this Court must be observed. 9 In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an "instrument of oppression". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a "very wide discretion on the Court": cf Lazar v Taito (Aust) Pty Ltd (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53], 141 FCR 370 at 382-3. And the power conferred by O 1 r 8 "may be exercised … where there is no apparent injustice and the alleged error can only be one of procedure": (1985) 5 FCR 395 at 403-4 per McGregor J. It has also been said that "[t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require": Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7]. Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules. See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43]-[55], 121 FCR 185 at 193-5 per North, Goldberg and Hely JJ. 10 In the present proceeding, the Respondent Minister contended that the Notice of Appeal should be construed as implicitly meaning that the Federal Magistrates Court erred in not concluding that the Tribunal itself erred in either of the two ways set forth in the Notice of Appeal. To the extent that the Notice of Appeal does not comply with the requirements imposed by the Federal Court Rules, compliance - it was said - should be dispensed with.