SZMIU v Minister for Immigration and Citizenship

Federal Court of Australia|2012-03-02|Before: Brennan J, Murphy J

The applicant's nonappearance before the Federal court 21 The application stated: The Court will hear this application at that time and place stated below. If you or your lawyer do not attend then the Court may make orders in your absence. It stated that the time and date the hearing would be advised to the applicant by the registry. 22 The hearing before the Federal Court was then scheduled for 13 February 2012 at 2:15 pm. The applicant was so advised by letter dated 23 November 2011 from the National Appeals Registrar addressed to him at both the residential and postal addresses he supplied to the Court. The Court file indicates that this letter was not returned. There is also no indication on the Court file that the registry was contacted by the applicant seeking an adjournment or advising of any difficulty in attendance on the date fixed. 23 The Minister tendered a letter dated 12 January 2012 sent by his lawyers to the applicant by express post reminding him of the hearing date of 13 February 2012. The letter advised that the Minister would be seeking dismissal of the proceedings and costs orders in the event of the applicant's non attendance. The Minister advised the Court that his letter had not been returned. 24 The matter came on for hearing as scheduled on 13 February 2012 at 2.15 pm. There was no appearance by the applicant when the matter was called for hearing inside and outside the Court using the acronym SZMIU, or when the applicant was called by name outside the Court. In the period between the hearing and delivery of this judgment my chambers have not been contacted by the applicant seeking to explain or justify his non-appearance.

Does the applicant require leave to appeal? 25 It is apparent from the first paragraph of the applicant's affidavit that he may have been confused as to whether he was bringing an application for leave to appeal with an accompanying extension application, or just an application for extension of time within which to file an appeal. 26 Rule 36.03 of the Federal Court Rules requires that a notice of appeal must be filed within 21 days at either the date the judgment appealed from was pronounced or leave was granted. 27 I consider that the applicant requires leave to appeal the decision of 20 October 2008 and also requires an extension of time in which to apply for leave. The Federal Magistrates Court summarily dismissed the application before it on 20 October 2008 pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001, because of the applicant's non appearance. An order under this rule involved an exercise of the Federal Magistrates Court's discretionary powers and was interlocutory in nature: MZXAU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1558 at [13]. 28 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that the applicant therefore requires leave to bring the appeal. 29 Although the position is not clear, I consider that the applicant has 21 days in which to seek leave to appeal: SZDGN at [9]. The Federal Magistrates Court decision was made in June 2008. The applicant's application for leave to appeal is more than 3 years late. 30 However, little turns on whether this is properly an application for an extension of time to apply for leave to appeal or an application for an extension of time to appeal. There is a substantial overlap of issues for consideration. These include whether there is an adequate explanation for the delay and whether the proposed appeal has merit. Accordingly I deal with both the application for an extension of time to appeal and the application for leave to appeal together below. 31 I also note that, as the application to the Federal Court does not deal with the decision of the Federal Magistrates Court of 1 September 2011, it is not necessary for me to determine whether that decision was also interlocutory in nature. However, I strongly suspect it was: see SZDGN at [3]-[6]. Were I required to determine an application for leave to appeal from that decision, on the state of the materials before me, I would make findings in similar terms.

The application for dismissal for non-appearance 32 In reliance on the non-appearance of the applicant, the Minister applies to dismiss the application pursuant to Part 35 of the Federal Court Rules- which relates to Leave to Appeal. Rule 35.33 relevantly provides: (1) If a party is absent when an application under rule 35.12 or rule 35.14 is called on for hearing, any other party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed; … Rule 35.12 relates to applications for leave to appeal. Rule 35.14 relates to applications for an extension of time within which to seek leave to appeal. 33 If the applicant does not require leave, then the appropriate rule for the Minister to rely on is r 36.75. The provisions are very similar. Rule 36.75 relevantly provides: (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the appellant: (i) the appeal be dismissed; … 34 Nothing turns on the question as to which rule is appropriate to rely on in seeking dismissal of the application because of the applicant's non-appearance. Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) ("FCA") enables such a dismissal. It relevantly provides: A single Judge (sitting in Chambers or in open court) or a Full Court may: (bb) make an order that an appeal to the Court be dismissed for: (i) … (ii) failure of the appellant to attend a hearing relating to the appeal. The failure of the applicant to attend the hearing in this matter is a failure of an appellant to attend a hearing relating to the appeal within the meaning of s 25(2B)(bb)(ii). 35 In the circumstances of the applicant's non-appearance I dismiss the application pursuant to s 25(2B)(bb)(ii) of the FCA. In reaching this determination I have had regard to s 37M of the FCA which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. To adjourn the matter because of the applicant's non-appearance would not have met the requirements of s 37M, even more so when the matter is an appeal against the finding of another court. The finality of court decisions is an important aim of the judicial system. 36 This summary dismissal because of the applicant's non-appearance is even more appropriate in circumstances where he failed to appear: (a) before the Tribunal on 17 April 2008; (b) before the Federal Magistrates Court on 20 October 2008; and (c) before this Court on 13 February 2011. The applicant applied to the Tribunal to review the delegate's decision to deny him a protection visa, sought to overturn the Tribunal's decision in the Federal Magistrates Court, and sought to appeal the decision of that Court in the Federal Court, yet did not properly prosecute any of them. As a result there has been substantial delay in finalising the question as to the applicant's entitlement to a protection visa. Any further delay must be minimised.

Prospects of SUCCESS OF THE application for leave to appeal and APPLICATION FOR AN extension of time 37 I am fortified in my decision to summarily dismiss the application as, having considered the documents filed, in my view both the application for leave to appeal and the application for an extension of time had no reasonable prospects of success in any event. 38 In order to succeed in an application for leave to appeal the applicant is required to show that the decision appealed from is attended by sufficient doubt to warrant its reconsideration on appeal, and that substantial injustice would result if leave were refused, supposing the decision to be wrong: MZXAU at [13]; Decor Corporation v Dart Industries Inc (1991) 33 FCR 397. However, if the appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, the application for leave to appeal should not be granted.

Insufficient doubt in dismissal decision to warrant reconsideration 39 The decision of the Federal Magistrates Court of 20 October 2008 discloses no error in the exercise of the discretion conferred by r 13.03A(c) of the Federal Magistrates Court Rules 2001. The applicant failed to attend the hearing before the Court, having previously failed to attend the hearing before the Tribunal. In my view there is nothing in the decision of the Federal Magistrates Court which indicates that it erred in the exercise of its discretion to dismiss the application for nonappearance. 40 I also note that in the 2011 application the applicant put his case that the Federal Magistrates Court erred in deciding to summarily dismiss the application in 2008 because of his non-appearance. I can see no error in the Federal Magistrates Court's consideration of the applicant's submissions during the hearing of the 2011 application. The learned Federal Magistrate considered the applicant's explanation for his non-appearance and found his explanation insufficient in the circumstances.

No arguable grounds of appeal 41 It is established that leave to appeal, and any extension of time within which to apply for leave, should be refused if the appeal is bound to fail. 42 The proposed Grounds of Appeal in the draft Notice of Appeal state, without alteration: 1. In making of the decision, the Refugee Review Tribunal denied the applicant procedural fairness. 2. The Refugee Review Tribunal appeared to be biased. For the reasons that I set out below, in my view these proposed Grounds of Appeal have no merit.

The claim of denial of procedural fairness by the Tribunal 43 This proposed ground of appeal is not particularised, and the affidavit in support does not provide any further information to assist with understanding the basis upon which it is put. What is clear is that the applicant did not attend the Tribunal in response to its invitation to him to give oral evidence. He did not accept the Tribunal's invitation even though it had previously advised him in writing that it would be unable to determine the application in his favour on the basis of the information he had submitted to that point. In these circumstances it cannot be described as a denial of procedural fairness for the Tribunal to have decided as it did that it could not be satisfied that he practised Falun Gong as he claimed, that he was a genuine Falun Gong practitioner, and that he faced a real chance of serious harm if he returned to China. The applicant has no reasonable prospect of establishing that he was denied procedural fairness by the Tribunal.

The claim of bias by the Tribunal 44 This proposed ground of appeal is again not particularised, and the other materials filed provide no information as to the basis upon which it is put. Allegations of bias are serious, going as they do to the very core of the integrity of the decision maker, and therefore require evidence in order to be established: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872. In circumstances in which the applicant did not attend the Tribunal hearing, and where I consider the Tribunal decision does not disclose any bias on its face, he does not have any reasonable prospect of establishing bias.

Substantial injustice 45 I am prepared to assume that if the decision of the Federal Magistrates Court of 20 October 2008 is wrong, the applicant suffers a substantial injustice in having his application for review struck out. However the countervailing considerations are such that I still consider that the application for leave to appeal has no reasonable prospect of success.

Explanation for the delay 46 Before the application for leave to appeal can be considered, the applicant must provide the Court with a satisfactory explanation for his three year delay in seeking leave. It is well established that the Court has a flexible discretion to extend time, but an extension of the magnitude sought would require a persuasive explanation. In referring to the discretion relating to extension of time for filing an appeal, the Full Court held in Jess v Scott at 195 that: It should not be overlooked that r 15(2) enables leave to be given "at any time", the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally, it may be said, something much less significant might justify leave where a party is a few days late. This finding is equally apposite to an application for extension of time for leave to appeal. 47 The applicant's affidavit in support of the application for extension of time was sworn on 4 August 2011. In it he deposes, without alteration: 1. I apply for extension of time to file and serve a notice of appeal because I do not know I should appeal in 21 days after my case was dismissed by the Federal Magistrates Scarlett. 48 The affidavit does not disclose any explanation for the applicant's gross delay except in stating that he was unaware of the time limits. Further, the applicant does not explain the delay between swearing his affidavit on 4 August 2011 and filing the application on 23 September 2011. He did not appear before me, either personally or by a representative, to provide any further explanation for his delay. 49 It is established that an absence of knowledge of the relevant time limits is not a sufficient explanation for delay in filing proceedings out of time: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [5] to [6]. In my view, the applicant has utterly failed to provide an acceptable explanation for his delay in seeking to appeal the decision of the 20 October 2008. 50 For these reasons, I consider that the application for leave to appeal, and the application for an extension of time within which to do so, were both bound to fail in any event.

Jurisdiction 51 It may seriously be doubted whether this Court has jurisdiction to entertain an appeal seeking to set aside an order of dismissal made by the Federal Magistrates Court for non-appearance: see Brown v Fraser (1896) 22 VLR 22; Crotty v Clarke (1896) 22 VLR 594; Adams v Cronin (Unreported, Supreme Court of Victoria - Court of Appeal, 6 September 1996); VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505 at [10] and other cases there cited. Notwithstanding the doubt I have as to jurisdiction, because the applicant is a litigant in person, I have taken the same course as that adopted by Sundberg J in VOAQ of considering the merits of the application.

Res judicata and issue estoppel 52 The Minister also submits that by the applicant's 2011 application to the Federal Magistrates Court he has already litigated an application to set aside the summary dismissal of 20 October 2008. The Minister submits that the applicant is now barred by issue estoppel and res judicata from making that application again. While there is some force to this argument, it is unnecessary for me to determine it as the application has been dismissed on other grounds.

Conclusion 53 For the reasons I set out above, I dismiss the application for an extension of time within which to appeal, or within which to seek leave to appeal, whichever the application be. I order the applicant to pay the party-party costs of the Minister. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

BACKGROUND 1 This proceeding is an application for extension of time for the applicant to seek leave to appeal from the judgment of the Federal Magistrates Court (SZMIU v Minister for Immigration and Anor [2011] FMCA 1473). 2 The applicant is a citizen of China who arrived in Australia on 28 November 2007. He left China legally and travelled on a passport issued in his name. On 4 December 2007 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Department refused the application on 3 January 2008. The applicant applied to the Refugee Review Tribunal which affirmed the decision of the delegate to refuse a protection visa. The applicant then applied to the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. The Federal Magistrates Court dismissed the application. 3 The task of the Federal Magistrates Court in dealing with the judicial review application brought by the applicant was restricted to a determination as to whether the Tribunal's decision was affected by jurisdictional error: see s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal's power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990)170 CLR 1 at 35 per Brennan J. 4 If time to appeal is extended, this Court's task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

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