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1 This is an appeal from orders made by Mansfield J on 17 October 2003. His Honour had earlier, on 8 September 2003, given directions which were framed to make ready for hearing an application by the appellants for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant protection visas to the appellants. Those directions were in the following terms;

SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 227 (20 August 2004)
Last Updated: 20 August 2004

FEDERAL COURT OF AUSTRALIA


SQMB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 227

















SQMB and SQNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 823 of 2003



RYAN, JACOBSON & LANDER JJ
20 AUGUST 2004
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 823 of 2003


On appeal from a Judge of the Federal Court of Australia


BETWEEN: SQMB and SQNB
Appellants
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
ORDER
JUDGES: RYAN, JACOBSON & LANDER JJ
DATE OF ORDER: 20 AUGUST 2004
WHERE MADE: ADELAIDE


THE COURT ORDERS THAT:
1. The appeal be adjourned to the next sittings of a Full Court in Adelaide.
2. The appellants file and serve by 30 September 2004;

(a) an amended notice of appeal containing, amongst other things, particulars of any ground on which it is contended that the decision of the Refugee Review Tribunal of 1 May 2000 should have been set aside;
(b) any further affidavit or affidavits on which it is intended to rely in support of any ground contained in the said amended notice of appeal; and
(c) a written outline of the submissions which the appellants propose to advance in support of the grounds of the said amended notice of appeal.
3. The respondent, within 21 days of service of the amended notice of appeal, the affidavit or affidavits (if any) and the outline of submissions referred to in paragraph 2 above, file and serve any affidavit or affidavit in answer to those (if any) filed on behalf of the appellants and a written outline of answering submissions.
4. Liberty be reserved to any party to apply to a single Judge of the Court on not less than 48 hours notice in writing to the other parties.
5. The respondent�s costs of the adjournment of the appeal fixed for hearing on 20 August 2004 be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 823 of 2003


On appeal from a Judge of the Federal Court of Australia


BETWEEN: SQMB and SQNB
Appellants
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent


JUDGES: RYAN, JACOBSON & LANDER JJ
DATE: 20 AUGUST 2004
PLACE: ADELAIDE


REASONS FOR ADJOURNMENT

THE COURT:

1 This is an appeal from orders made by Mansfield J on 17 October 2003. His Honour had earlier, on 8 September 2003, given directions which were framed to make ready for hearing an application by the appellants for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant protection visas to the appellants. Those directions were in the following terms;

�1 The applicant [sic], by 3 October 2003:

(a) If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The notice of motion shall be made returnable for hearing at the next directions hearing.
(b) file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged.
(c) file and serve any further affidavit material to lay a foundation for the allegations made in the amended application.

(d) file and serve outline of submissions.

(e) file and serve a memorandum stating:

● the State or Territory in which the applicant is residing;

● whether the applicant wishes to be present at the hearing of the application;


● whether the matter is one that could be transferred to the Federal Magistrates Court;


● whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection.


2 In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time.

3 The respondent within 3 weeks of receiving the applicant�s amended application and supporting material pursuant to Order 1 above:

(a) file and serve any affidavits in reply.

(b) file and serve submissions in reply.

4 The directions hearing is fixed for Friday, 17 October 2003 at 9.00am.

5 In the event that Order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.

6 Liberty to apply.�

2 As contemplated by paragraph 4 of those directions, the application returned to his Honour for a further directions hearing on 17 October 2003. Counsel for the appellants then said;

�The applicant has not complied with the court orders and does not wish the matter to proceed to a hearing.�

3 His Honour gave the following reasons:

�This is an application commenced on 18 June 2003, it seems, to quash a decision of the Refugee Review Tribunal given on 1 May 2003. On 8 September 2003 the court gave directions to the intent that the matter would be able to be listed for hearing today and that directions could be further given as necessary to secure the hearing.

The directions given on 8 September 2003 have not been complied with. Counsel for the applicants has indicated that the applicants have given instructions that they do not wish to proceed with the application. In those circumstances I dismiss it. I order that the applicants pay to the respondent the costs of the application, which I fix at $1500, including disbursements.�

4 On the same day the Court made the following orders:

�1 The application be dismissed.

2 The applicant pay the respondent�s costs fixed at the sum of $1,500.00.�

5 It appears that the appellants� solicitor did not have instructions that his clients did not wish the matter to proceed to a hearing. The solicitor had written to the appellants� migration agent, Australia and New Zealand Migration Services ("the agent") stating that, in the solicitor�s opinion the case was not a strong one. On the same date, the solicitor wrote to the male appellant notifying him that the directions by Mansfield J of 8 September had been given and had to be complied with in default of which "it is likely the matter will be dismissed in the Federal Court on or about 17 October 2003." The letter concluded;

�If you have any enquiries, please contact your Registered Migration Agent who also has a copy of the Court Orders and they will refer your query to our office.�

6 Later, on 4 November 2003, the solicitor wrote to both appellants recording the orders made by Mansfield J on 17 October 2003 dismissing their application. The letter advised the appellants to send a cheque for $1,500 in payment of the costs which his Honour had ordered to "DIMIA � Collector of Public Monies" and enclosed a fee note for $770 including GST.

7 Neither of the letters of 26 September or 4 November 2003 was received by the appellants because on 19 September 2003, they had moved from the address which they had given to the agent. The appellants did not learn of the proceedings in this Court until October 2003 when, according to the male appellant, the agent told him that the Court case was "going to finish on 17 October 2003 and my wife and I must come to Sydney to sign documents for another case." The document signed in response to that request was a Notice of Appeal dated 5 November 2003 but not filed in the Court until 19 November 2003. The grounds of appeal recited in that notice were;

�2. My solicitor failed to inform me the Court orders to comply.

3. The court did not give me opportunity to present my case.�

After signing that document, the appellants paid the agent an amount of $600 which was in addition to earlier payments to the agent of $800 in December 2001 and $2,000 in June 2003.

8 The respondent has filed written submissions which do not challenge the correctness of the facts recited above. However, it is contended in those submissions that the Court should not allow the appeal and reinstate the appellant�s application for review because no jurisdictional error by the Tribunal has been alleged or is identifiable. In particular, the submission referred to the fact that the Tribunal had, on 1 April 2003, written to the appellants inviting them to a hearing but in the pro forma response to that invitation the appellants had marked the box appropriate to indicate;

�No, I/we do not want to come to a hearing. I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action or enable me/us to appear before it.�

However, we infer that the refusal of that invitation occurred on the advice of, or after an intervention by, the agent. A letter dated 14 May 2002 from the Department of Immigration & Multicultural & Indigenous Affairs to the male appellant indicating matters which might lead the original decision-maker to reject his application for a protection visa had elicited an extremely generalised and largely non-responsive answer from the agent. Accordingly, we have no confidence that the appellants have received, at any point in the regrettable history recounted above, the professional care and attention in the preparation and presentation of their case which they were entitled to expect.

9 In these circumstances, the Court is unwilling, without the benefit of properly researched assistance from Counsel for the appellants, to embark on an inquiry into whether they have suffered an injustice as a result of having been deprived of a full hearing of their application. We therefore requested the provision of pro bono legal representation for the appellants, which Mr Simon Ower of Counsel has generously undertaken to give. To ensure that Mr Ower�s assistance is as effective as possible, we shall adjourn the appeal to the next sittings of a Full Court in Adelaide and give the following directions:

(i) That the appellants file and serve by 30 September 2004;

(a) an amended notice of appeal containing, amongst other things, particulars of any ground on which it is contended that the decision of the Refugee Review Tribunal of 1 May 2000 should have been set aside;
(b) any further affidavit or affidavits on which it is intended to rely in support of any ground contained in the said amended notice of appeal; and
(c) a written outline of the submissions which the appellants propose to advance in support of grounds of the said amended notice of appeal.
(ii) That the respondent, within 21 days of service of the amended notice of appeal, the affidavit or affidavits (if any) and the outline of submissions referred to in (i) above file and serve any affidavit or affidavit in answer to those (if any) filed on behalf of the appellants and a written outline of answering submissions.
(iii) That liberty be reserved to any party to apply to a single Judge of the Court on not less than 48 hours notice in writing to the other parties.
(iv) That the respondent�s costs of the adjournment of the appeal fixed for hearing on 20 August 2004 be reserved.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.




Associate:




Dated: 20 August 2004


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