SZLDH v Minister for Immigration and Citizenship

Federal Court of Australia|2008-06-04|Before: Gaudron J, Emmett J, Cowdroy J

REASONS FOR JUDGMENT 1 The applicant applies to this Court for leave to appeal from the interlocutory decision of Federal Magistrate Scarlett delivered on 19 December 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 6 April 1999. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') not to grant the applicant a Protection (Class XA) visa ('the protection visa'). 2 The application for judicial review of the Tribunal decision came before the Federal Magistrates Court of Australia on 3 September 2007. The hearing was fixed for Monday 10 September 2007. On that date the applicant did not attend and Federal Magistrate Scarlett accordingly dismissed the application pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 (Cth). Such rule provides: Default of appearance of a party

If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following:

(b) order that there is not to be any hearing unless:

(i) the proceeding is again set down for hearing; or

(ii) any other steps that the Court directs are taken;

(d) if the party absent is a party who has made an interlocutory application or a cross-claim - dismiss the interlocutory application or cross-claim;

(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.

3 On 21 November 2007 the applicant filed a notice of motion in the Federal Magistrates Court seeking various orders including the vacation of the orders made on 10 September 2007; reinstatement of his application for hearing; and orders in the nature of certiorari, prohibition and mandamus in respect of the Tribunal and the Minister. In an affidavit sworn on 16 November 2007 and filed on 21 November 2007 in support of the notice of motion the applicant claimed that he did not attend the hearing on 10 September 2007 because of illness and mental distress due to the fact that his father had been admitted to hospital on the week of 1 September 2007. 4 The notice of motion was listed for hearing on 3 December 2007. The applicant failed to attend but a medical certificate was forwarded to the Court on 29 November 2007 which suggested that the applicant was depressed. Accordingly, the Court adjourned the hearing of the motion until 17 December 2007. The hearing proceeded on that day. 5 The decision of Scarlett FM delivered on 19 December 2007 reveals that the applicant had been joined as a represented party in the proceedings before the High Court of Australia in Muin v Refugee Review Tribunal and Others (S36 of 1999) (2002) 190 ALR 601 and that following orders being made by Gaudron J in the High Court of Australia on 25 November 2002 the applicant commenced his own proceedings on 29 May 2003. An application for orders nisi was remitted to the Federal Court of Australia and on 20 February 2004 Emmett J refused the application (S1174 of 2002 v Refugee Review Tribunal and Anor [2004] FCA 289). 6 His Honour summarised the applicant's 87 grounds of review as follows: 1. The Tribunal breached s 424A of the Migration Act;

7 In assessing whether reinstatement of the application before the Federal Magistrates Court should be made, Scarlett FM observed that the Court was required to consider whether the party who sought reinstatement had provided a reasonable and adequate explanation for absenting himself from the hearing and secondly whether the merits of the substantive application warrant setting aside the earlier judgment. 8 His Honour was not satisfied that the applicant had provided a reasonable explanation to the Court for his absence. As to whether the applicant had an arguable case, Scarlett FM observed that the applicant had taken no steps between 20 February 2004 and 1 August 2007 to advance his claim. His Honour found that the applicant's substantive application disclosed no arguable case and was 'totally meritless'. Scarlett FM accordingly dismissed the applicant's application.

APPLICATION TO THIS COURT FOR LEAVE TO APPEAL 9 Because the Federal Magistrate did not finally dispose of the substantive rights of the parties, this Court must treat the decision of Scarlett FM as being interlocutory: see Cubillo and Another v Commonwealth (2001) 112 FCR 455 at 503. As such, leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) to appeal to this Court. 10 Under O 52 r 5(2) of the Federal Court Rules (Cth) ('the Rules') the applicant should have filed his application for leave to appeal within 21 days of 19 December 2007, namely by 9 January 2008. His application for leave to appeal was nearly three months late, having been filed on 2 April 2008. Accordingly, the applicant requires leave to appeal from the interlocutory decision of Scarlett FM under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as well as an extension of time to file such application for leave pursuant to O 3 r 3 of the Rules. 11 On 2 April 2008 the applicant filed in this Court an application under O 52 r 5(3) seeking an order that compliance with O 52 r 5(2) of the Rules be dispensed with. Such application attached a draft notice of appeal which claims, inter alia, that: 1. The Federal Magistrate erred in finding that the applicant did not give a reasonable explanation for his failure to attend court on 10 September 2007;

The Federal Magistrate erred in drawing negative inferences from the applicant's non-attendance at court;

The Federal Magistrate erred in finding that the applicant's application had no prospects of success and that it did not disclose any arguable case at all;

The Federal Magistrate erred in finding that the Tribunal did not fall into jurisdictional error;

The Federal Magistrate erred in finding that because the applicant did not include certain arguments in his application filed on 1 August 2007 those arguments were not sustainable.

12 The affidavit of the applicant sworn on 30 March 2008 and filed on 2 April 2008 in support of his application for leave to appeal claims that on 19 December 2007 he was 'mentally distressed and emotionally upset'. He claims that he could not speak English, did not have the services of a lawyer and believed that he had genuine grounds to lodge an appeal. He claims that the Federal Magistrate erred in finding that the Tribunal did not fall into jurisdictional error by failing to comply with the Migration Act 1958 (Cth) ('the Act').

FINDINGS 13 The Court has considered the applicant's affidavit in support of his application under O 52 r 5(3) of the Rules and finds that the applicant's explanation for his delay in filing the application for leave to appeal is barely adequate. However, to ensure that no injustice is done to the applicant and to enable the Court to consider the basis for his application for leave, the Court will grant leave to the applicant pursuant to O 3 r 3 of the Rules to file his application for leave to appeal out of time. 14 In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by this Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong: see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184; Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441. 15 At [20] of his judgment, Scarlett FM said: Whilst even a weak case is entitled to the time of a court (Lindon v Commonwealth of Australia (No. 2)) it is also the case that where there are no prospects of a substantive application an application for reinstatement should be refused because reinstatement would be futile (SZBRB v Minister for Immigration; SZCPY & Anor v Minister for Immigration and SZITC v Minister for Immigration).

16 It is clear from the decision of the Federal Magistrate that the applicant knew of the fixtures for his hearing before the Federal Magistrates Court on 10 September 2007. He did not attend, did not notify the Court of his non-attendance, and did not seek any medical certificate until 29 November 2007. His Honour determined that the applicant failed to provide a reasonable explanation for his failure to attend the hearing on 10 September 2007. There is no demonstrable error in such finding. 17 As to the substantive merits of the applicant's application in the Federal Magistrates Court, his Honour observed at [32]: The applicant appears to have done nothing between 20th February 2004 and 1st August 2007, when he commenced these totally meritless proceedings. It is clear that the substantive application does not disclose any arguable case at all.

18 The Court is not satisfied that there is any basis to hold that the decision of Scarlett FM is erroneous. The Federal Magistrate was entitled to draw the conclusions as set out in his judgment. His Honour's decision is not attended with sufficient doubt to warrant its reconsideration by this Court. 19 Having regard to the draft grounds of appeal, the Court is also satisfied that no substantial injustice would result if leave were refused supposing the decision to be wrong. 20 It follows from the above reasons that the application for leave to appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 4 June 2008 Solicitor for the Applicant: The Applicant appeared in person

Federal Magistrates Court Rules 2001(Cth)

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