SZMUV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Applicant is a citizen of Bangladesh who arrived in Australia on 11 January 2008. 2 He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 4 February 2008. A delegate of the Minister refused to grant the visa on 24 April 2008. An application for review was lodged with the Refugee Review Tribunal on 19 May 2008 and by way of a decision signed on 19 August 2008 the Tribunal affirmed the delegate's decision. 3 An Application for review of the Tribunal's decision was filed in the Federal Magistrates Court on 2 October 2008 and an Amended Application was subsequently filed on 28 November 2008. That Court dismissed the Application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on 8 December 2008: SZMUV v Minister for Immigration and Citizenship [2008] FMCA 1644. 4 Rule 44.12 of the 2001 Rules 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) expressly provides, the dismissal of an application under r 44.12(1)(a) is an interlocutory decision. 5 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). Considerations relevant to the exercise of that discretion are (Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399, per Sheppard, Burchett and Heerey JJ): (i) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25], 166 FCR 440 at 446 per Sackville, Emmett and Jacobson JJ. 6 No Application seeking leave has been filed in this Court. The proceeding in this Court was commenced by a purported Notice of Appeal as filed on 24 December 2008. In accordance with Directions given by the Registrar on 14 January 2009, the purported appeal has been treated as an Application for leave to appeal and the Notice of Appeal as a draft of the Notice that would be filed if leave were granted. The handwritten Grounds of Appeal set forth as follows (without alteration): 1. The single judge of the Federal Magistrate Court in His Honours judgement delivered on … failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiccery Act 1903. 2. The learned Federal Magistrate has dismissed my application without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. A written Outline of Submissions has, however, been filed by the Applicant. That outline seeks to advance the following contentions (without alteration): 1. His Honours should have found that the Tribunal failed to appropriately deal with the documents in particular the inference that the documents are fabricated thus breaching section 424A. Particulars The Tribunal inferred that the documents that the applicant's submitted were fabrication. The Tribunal has not given the applicant an opportunity in the section 424A letter to deal with the claim raised by the Appellant. 2. His Honours should have found that the Tribunal erred by not allowing the appellant to explain the documents and rebut any inference of fabrication breaching section 425 of the Migration Act. Particulars The Tribunal has drawn an inference that the independent country information about the prevalence of document fraud in Bangladesh, yet the appellant was not given the opportunity to rebut this inference. Notwithstanding the form of the document filed, it is in effect an application to amend what has been treated as a draft Notice of Appeal. 7 The Applicant appeared before the Court unrepresented, although he did have the benefit of an interpreter. He accepted that the argument set forth in his written Outline of Submissions had not been advanced before the Federal Magistrate. The explanation provided was that the prospect of raising that argument was only raised by a "friend" in conversation subsequent to the hearing conducted by the Federal Magistrates Court. 8 Notwithstanding considerable reservation, it is considered that leave to appeal should be refused.