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[2016] FCA 121
Federal Court of Australia
2016-02-16
Davies J
Original judgment source is linked above.
(REVISED FROM TRANSCRIPT) 1 The applicant has applied for an extension of time in which to seek leave to appeal the dismissal by the Federal Circuit Court ("FCC") of the applicant's application for review of the decision of the Refugee Review Tribunal ("the Tribunal") to refuse to grant the applicant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) ("Migration Act"). Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the application was dismissed by the FCC under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(1)(a) provides: (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;... Rule 44.12(2) provides that a dismissal under r 44.12(1)(a) is interlocutory. 2 Although the applicant was out of time to seek leave by a short period, the applicant gave no explanation in his material in support of the extension of time as to why he did not lodge the application within time. The delay in lodging the application has relevance in light of the history of this matter. 3 The applicant did not attend the Tribunal hearing, although he had completed a "Response to Hearing Invitation" indicating that he would attend. The Tribunal decided not to exercise its discretion to reschedule the hearing and pursuant to s 426A of the Migration Act, made a decision on the applicant's application for review of the delegate's decision without taking any further action to allow or enable the applicant to appear. The reasons given by the Tribunal for determining the application in the applicant's absence were as follows: 5. On 4 July 2014 the Tribunal wrote to the applicant inviting him to appear before it to give evidence and present arguments. On 8 July the applicant returned a completed "Response to Hearing Invitation" form to the Tribunal indicating that he would attend the hearing. However, the applicant did not attend the hearing as scheduled. Half an hour after the scheduled starting time of the hearing, the Tribunal rang the mobile phone number provided by the applicant but he did not answer. He did not contact the Tribunal to seek a postponement of the hearing or explain his failure to attend. 6. The Tribunal notes that although the applicant attended the Department to provide his personal identifiers, he did not contact the Department to arrange an interview as he was invited to do by the same letter which set out the requirement that he provide his personal identifiers. In these circumstances the Tribunal has decided not to exercise the discretion to reschedule the applicant's appearance and pursuant to s 426A of the Act has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 4 After consideration of the applicant's claims and evidence, the Tribunal held that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugee Convention and, therefore, did not satisfy the criterion set out in s 36(2)(a) of the Migration Act. The Tribunal was also not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act. 5 The applicant applied to the FCC for an order to show cause in respect of the Tribunal decision on the ground that the applicant was denied procedural fairness. On the day of the hearing the applicant was represented by a lawyer who sought an adjournment of the hearing on the ground that he had only recently been retained by the applicant and had only a brief time to look at the materials. The application for adjournment was opposed by counsel appearing for the first respondent ("the Minister"). After considering the merits of the applicant's application for show cause the FCC refused the adjournment request, finding that there was no utility to an adjournment because the applicant's case was hopeless. In so concluding, the FCC had regard to the Tribunal's reasons and concluded that any assertion that the Tribunal failed to provide the applicant natural justice could not possibly be sustained. The FCC also concluded that the Tribunal's reasoning did not disclose any possible want of understanding of the relevant tasks that the Tribunal was to undertake. The FCC held that the Tribunal was, on the materials before it, correct to form the conclusions that it did. Accordingly, the FCC dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules. 6 The applicant now seeks to appeal that decision. The proposed grounds of appeal challenge the finding of the FCC that the applicant was not denied procedural fairness by the Tribunal in proceeding with the hearing in his absence. The applicant also challenges the finding of the FCC that no error of law was disclosed in the reasons of the Tribunal dismissing the application and seeks to challenge the Tribunal's findings on the merits of the application and the award of costs in favour of the Minister. 7 The applicant has not appeared at the hearing today. Furthermore, the applicant has not filed any written submissions in support of his application as directed by orders made on 16 October 2015. Nothing has been brought to the Court's attention to indicate that there is an explanation for the non-attendance of the applicant at today's hearing which would warrant an adjournment of the hearing of the application, or otherwise provides an explanation as to why the applicant has not complied with the orders of the Court. 8 Factors that are relevant to the exercise of the Court's discretion to grant the extension of time are whether the applicant has an acceptable explanation for the delay and the merits of the proposed application for leave to appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at 348-9 (FCR). 9 The applicant has not provided any explanation for the delay. In view of the applicant's prior history in relation to the prosecution of his protection claim, the delay in making his application for leave to appeal, albeit short, is a factor against a grant of extension of time. 10 Having considered the materials and reasons for decision of the Tribunal and the FCC, I am also of the view that the grounds of the proposed appeal do not disclose any basis for considering that the decision of the FCC is attended by sufficient doubt to warrant its reconsideration by this Court. I am unable to discern any legal error in the decision of the FCC. The FCC concluded, correctly in my opinion, that any assertion that the Tribunal denied the applicant procedural fairness cannot be sustained. The Tribunal's reasons for proceeding to determine the applicant's application without taking any further action to allow or enable the applicant to appear before it disclose an evident and intelligible justification for the exercise of discretion under s 426A of the Migration Act. The FCC also concluded, correctly in my opinion, that no jurisdictional error is disclosed in the Tribunal's reasons for concluding that the applicant does not qualify for a protection visa. The applicant's claim essentially failed because the Tribunal did not find the applicant's claims credible. 11 Accordingly, the application will be dismissed.
POSTSCRIPT 12 The ex tempore judgment was given orally and the orders pronounced before the Court became aware that the applicant had sent an email to the Court shortly before the hearing advising that he could not attend. The hearing commenced at 2:15pm and was concluded before 3:00pm. At 3:05pm, the Victorian Registry brought to my attention that an email had been sent to the Registry by the applicant at 2:00pm. That email had not been picked up by the Registry when sent because it was received in the Registry's junk mail folder. In that email, the applicant advised that he could not attend today's hearing because he was suffering with diarrhoea. He attached a medical certificate. 13 The medical certificate is dated 15 February 2016 and states as follows: This is to certify that [MZAMF] will be unfit for work for three day, as he is suffering from medical condition. 14 The "medical condition" is not identified and, moreover, it is a certificate that the applicant is "unfit for work". The certificate is totally inadequate to justify the applicant's non-attendance at Court. The certificate has no meaningful detail about the nature of the applicant's "medical condition" or any meaningful content which would enable the Court to conclude that the applicant could not participate in the hearing either in person or by telephone, if necessary. 15 In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559, Lindgren J refused an application for an adjournment in circumstances where medical certificates were similarly lacking in detail about the nature of the condition which would prevent the appellants in that case from attending Court. His Honour stated that the certificates were "quite unsatisfactory" because they did not address the critical question of whether, and if so why, the medical conditions would prevent the appellants from travelling to the Court and participating effectively in a Court hearing. Other cases where medical certificates have been rejected because of lack of detail are MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 and Singh v Minister for Immigration and Border Protection [2014] FCA 538. 16 I note that the applicant stated in his email that he was suffering diarrhoea but without an acceptable medical certificate verifying his inability to attend Court the applicant has not provided a satisfactory explanation for his non-attendance. 17 Moreover, the applicant left wholly unexplained why he waited until 2:00pm on the day of the hearing, which was scheduled to commence at 2:15pm, to send the email, when he had obtained the certificate the day before. He did not give the Minister or the Court prior notice that he was suffering the condition he claims has prevented him from attending Court but waited until the very last moment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. 18 In those circumstances, the judgment and orders stand. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.
MZAMF
Minister for Immigration and Border Protection