SZGII v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for an extension of time in which to bring an appeal from a decision of the Federal Magistrates Court given on 7 November 2005 refusing the applicant's application under Federal Magistrates Court Rules 2001, r 16.05(2)(a) to set aside orders made on 23 August 2005 dismissing an application under r 13.03A(c) based on the applicant's failure to attend the hearing. 2 The applicant was notified of today's hearing by letter from the registry dated 23 February 2006. Mr Carter who appears for the first respondent ('the Minister') informs me that he received a copy of that letter on 24 February 2006. The applicant has given various addresses for service but the letter sent by the Registry was sent to the address he has used in intituling his application for leave to appeal, namely, 6/77 Denman Avenue, Wiley Park, New South Wales, 2195. The matter was called before the hearing commenced and there was no appearance by the applicant. 3 The extension of time under O 52 r 5(2) is sought on the basis of the application filed on 9 December 2005 and some typewritten submissions by the applicant. He asserts in those that he was in severe pain as a "patient of hepatitis C" on the date of the hearing fixed on 7 November 2005. He says that his absence was not wilful but was beyond his control. There is also an affidavit in the file sworn 9 December 2005 which says: 'The application was fixed for hearing on 7 November 2005. At this time the applicant was again unable to appear due to the severe pain as the applicant is the patient of hepatitis C. The applicant is a chronic patient of the above hepatitis C, the applicant suffers from severe pain. The absence of the applicant was not wilful nor was it intentional but was beyond the control of the applicant. The applicant has a good case which discloses a cause of action and if the appeal [the application for leave] is not accepted the applicant shall suffer a lot.' 4 The applicant arrived in Australia on 20 October 2003. He made an application for a amended protection visa on 4 December 2003 which was refused by a Delegate of the Minister on 12 March 2004. He applied for a review by the Refugee Review Tribunal ('the Tribunal') on 8 April 2004 in which the Tribunal affirmed the delegate's decision on 29 June 2004. The applicant sought judicial review in the Federal Magistrates Court by filing an application on 17 May 2005. 5 The court book in the court below was filed and served on 10 June 2005. An application was filed on 19 July 2005 and the Minister filed an objection as to competency on 11 August 2005 which was set down for hearing on 23 August 2005. The trial judge dismissed the application at the hearing on 23 August 2005 under r 13.03A(c) which provides that the Federal Magistrates Court may dismiss an application on the basis of a party's failure to attend the hearing. 6 The applicant filed an application to set aside the order dismissing his application on 15 September 2005 which was listed for hearing before his Honour on 7 November 2005. Once again the applicant failed to attend and on 7 November 2005 the trial judge without giving reasons dismissed the application under Federal Magistrates Court Rules 2001, r 16.05(2)(a) to set aside the orders that had been made on 23 August 2005 because of the applicant's failure to appear. 7 It is clear from the affidavit of 9 December 2005 from which I have set out the material parts above that the applicant knew that the hearing had been listed on 7 November 2005. He does not suggest that he sought to communicate with the court below on or prior to that date to inform it of any matter which might affect his ability to attend court or to seek an adjournment. 8 Mr Carter who appears for the Minister referred me to material that had been put by the applicant to the Federal Magistrates Court prior to the hearing on 23 August 2005 consisting of some pathology and ultrasound reports and a letter from the applicant asserting that he was suffering from hepatitis C and was not able to attend the court on that day. He gave an address as had appeared in a number of his documents at that time of 6/76 Denman Avenue, Wiley Park. 9 The address recorded on Austech Sydney Laboratories pathology report dated 7 June 2005 is a different address again, 7/76 Ferguson Avenue, Wiley Park. That it was a test which was not for hepatitis C although in the clinical notes section of the report it stated: "Hep C carrier." 10 A radiology report of Campsie Family Radiology dated 1 June 2005 also contained a clinical note: "Hep C carrier. Liver, spleen, not enlarged -" and apart from a millimetre calculus involving the upper aspect of the left kidney which was referred to as a "small left renal calculus" the report said: "No definite hepatic pancreatic splenetic or right renal abnormality is detected." 11 No other clinical sign is revealed in that upper abdominal ultrasound report. There was no interpretive material before the trial judge or indeed before me as to the effect of the evidence of a small left renal calculus or the calculus on the upper aspect of the left kidney and, in particular, what that medical condition's effect may have been on the applicant's ability to attend court at the time of the hearing. These reports were dated two and a half months before the first hearing before the Federal Magistrates Court. While they refer to hepatitis C they only refer to it in the situation where the applicant is a carrier as opposed to someone who is suffering in any recognisable way from the effects of that unfortunate illness. 12 There is no material before me to explain on an expert basis or otherwise than by the self-assertion of the applicant anything about his medical condition on any occasions before the Federal Magistrates Court or at the present time. 13 In order to be satisfied whether an extension of time in which leave to appeal should be granted, O 52 r 15(2) requires that there be special reasons. In Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] Brennan CJ, McHugh J referred with approval to the practice of the English Court of Appeal described by Lord Denning MR, in R v Secretary for the Home Department Ex Parte Mehta [1975] 1 WLR 1087 at 1091 where his Lordship said: 'We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.' 14 Kirby J expressed a similar view at 195 CLR at 540-541 [66]. 15 The question which I have raised with Mr Carter which concerns me is that in the court book before the Federal Magistrates Court the application for review to the Tribunal contains no explicit material provided by the applicant for the review. He declined an invitation to come to a hearing and in its findings and reasons the Tribunal said at court book 61: 'The information that the applicant has provided does not: . provide details of the military information provided to the Indian intelligence agents, nor does he explain how he obtained this information; . explain how he was able to obtain a passport in 2000, leave Pakistan legally and has been able to return to Pakistan in 2003 if he was of adverse interest to the Pakistani intelligence authorities.' 16 There may be some argument open on the merits having regard to the decisions of the High Court in SAAP v MIMIA (2005) 215 ALR 162 and the recent decision of the Full Court of this court in SZEEU v MIMIA [2006] FCAFC 2 to argue about whether or not a jurisdictional error had been made by the Tribunal by reason of some possible non-observance of section 424A of the Migration Act 1958 (Cth). I am unable to determine whether there is any basis on which such an argument could be put, although I think Mr Carter has fairly acknowledged that it is possible that an argument may be raised along those lines. 17 This has caused me some concern that there may be ultimately some merit in the application that had been originally made to the Federal Magistrates Court, however the current application seeks an extension of time for leave to appeal from a dismissal of an application on the ground that the applicant had not appeared at the hearing of his own application. 18 I am of the opinion that there is no medical or other credible evidence to suggest any basis upon which the current application has any prospect of success. The applicant's affidavit filed in this court on 9 December 2005 reveals that he knew of the hearing. It provides no material, apart from his own assertion, as to a medical reason why he did not attend the hearing, nor does it offer any explanation as to why he did not notify the court of his inability to attend or seek to provide the court with any medical evidence either at the time of the hearing on 7 November 2005 or in support of the current application. 19 I am not satisfied that the applicant has established on the evidence and submissions put in support of his application for leave, or on a review of the papers with the assistance of Mr Carter on behalf of the Minister, that the applicant has shown a special reason why any extension of time to bring an appeal from the trial judge's decision should be granted. For these reasons I would refuse the application.