SZNHV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Applicant arrived in Australia on 3 August 2008. He entered Australia using a passport issued to him by the Islamic Republic of Pakistan. That passport indicated that he was a national of Pakistan. Later that month, on 25 August, he applied to the Department of Immigration and Citizenship (Minister) for what is known as a protection visa under the Migration Act 1958 (Cth) (Migration Act). On 10 November 2008, a delegate of the Minister for Immigration and Citizenship decided to refuse the Applicant's application for a protection visa. As was his right under the Migration Act, the Applicant then sought a review on the merits of the Minister's delegate's decision by the Refugee Review Tribunal (Tribunal). 2 On 17 December 2008, the Tribunal wrote to the Applicant advising that, having considered the material then before it relating to his application, the Tribunal was not able to make a favourable decision on the basis of that information alone. The Tribunal's letter then invited the Applicant to attend the Tribunal on 16 February 2009 to give oral evidence and present arguments in support of his claims. It was further stated in the Tribunal's letter of 17 December 2008 that if he did not attend the hearing and a postponement was not granted the Tribunal might make a decision on his case without further notice. 3 On 5 January 2009, the Tribunal received a response to its letter of 17 December 2008 indicating that the Applicant wished to attend the hearing which the Tribunal had offered. As it happened, on 16 February 2009 the Applicant did not attend at the Tribunal at the time and place which had been specified in the Tribunal's letter of 17 December 2008, nor did the Applicant make contact with the Tribunal prior to the Tribunal's coming to make a decision in respect of his application on 17 February 2009. 4 The conclusion which the Tribunal reached, on the basis of the material then before it, was that the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugee Convention. On that basis the Tribunal concluded that the Applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act for a protection visa. 5 The Applicant then sought judicial review by the Federal Magistrates Court of the Tribunal's decision. He did this by filing in the Sydney Registry of that court on 9 March 2009 an application. That application specified a particular address for service. In other words, a particular contact address for the Applicant. The application also, upon its filing, was endorsed with a date, time and place for the first court date. That was 2.15pm on 24 March 2009 in Sydney. 6 The Applicant did not attend before the Federal Magistrates Court on that date at that time and place. Before then, the Minister's solicitor, the Australian Government Solicitor, had sent a letter to the address of the Applicant specified in the Federal Magistrates Court application. That letter notified an intention on the part of the Minister by his solicitor to seek an order for dismissal of the application, in the event that the Applicant did not attend before the Federal Magistrates Court on 24 March. Upon the Applicant's failure to attend on 24 March, the Federal Magistrate was asked to, and did, dismiss the application by reason of the failure of the Applicant to attend. 7 The Federal Magistrates Court Rules 2001, by r 13.03C(1)(c), permitted such an order of dismissal. In dismissing the application, the Federal Magistrate directed the Minister, by his solicitor, to send a copy of the dismissal order together with a copy of a rule of the Federal Magistrates Court which permitted an application for the reopening of proceedings by the setting aside of the dismissal order. The Applicant came to file an application for the setting aside of the dismissal order that was heard by the Federal Magistrates Court on 16 June 2009. 8 On that date, for reasons which were then published, the Federal Magistrates Court declined to set aside the order of dismissal. It is from that order that the Applicant seeks leave to appeal. 9 In SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814, which was also an application for leave to appeal, I stated the following at paragraphs 15 to 17: 15. Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being Décor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant "had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error". 16. Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory. 17. The present case nicely illustrates the point. The refusal by the Federal Magistrates Court on 12 November 2007 to set aside the order of dismissal made on 12 October 2007 and to reopen the proceeding for the judicial review of the Tribunal's decision did not have the legal effect of finally determining as between the Applicant and the Minister the merits of that proceeding. However, the practical effect of the refusal to reopen was to leave in place the order of dismissal of the challenge to the Tribunal's decision. That, in turn, had the practical effect of leaving standing the decision of the Tribunal affirming the refusal to grant the Applicant a protection visa. An appreciation of the practical effect that some, strictly interlocutory judgments may nonetheless have led Branson J in Johnston v Comcare (2002) 124 FCR 160 at [8] to observe that leave to appeal is more readily granted where a decision, if allowed to stand, will have "the practical effect" of determining a claim of an applicant to be entitled to an order, rather than in a case concerning practice and procedure only. I have approached the question of whether to grant leave in this case with this sentiment in mind. 10 In the present case, the refusal by the Federal Magistrates Court to set aside the earlier order of dismissal had exactly the same practical effect, so far as the Applicant is concerned, to that which I have described in the passage quoted. I therefore take into account all of the principles set out in the passage quoted in deciding this application. 11 At its heart, this is a case where an applicant did not attend before the Tribunal and the Tribunal went on to determine the application on the basis of the material then to hand. It seems to me that the circumstances of the case before the Tribunal are not relevantly distinguishable from those which grounded the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 (VSAF). 12 In that case, at para 24, the Full Court made reference to and followed an earlier Full Court decision, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (NAST). There, too, an Applicant had failed to attend a hearing and the Tribunal proceeded to make its decision without taking any further steps to enable him to attend. The Full Court in NAST held that this was a course that the Tribunal was entitled to adopt. That was followed by the Full Court in VSAF. Those decisions bind me, as they did the Federal Magistrate. 13 I note that the learned Federal Magistrate makes reference to VASF at [13] of her reasons of 16 June 2009 for the proposition that there is no general obligation on the part of the Tribunal to investigate an Applicant's claims. That is true. It is for an Applicant to advance his or her claim for a visa as fully and as comprehensibly as he or she can. 14 The Migration Act obliged the Tribunal to offer the Applicant an oral hearing if he requested that. The Applicant did. The Tribunal then offered an oral hearing. It is just that the Applicant did not take advantage of an offer which he well knew had been made. The Tribunal was not obliged uncritically to accept the application and its underlying circumstances as related in the material before it. A criterion for the granting of a protection visa is satisfaction on the part of the decision-maker that an Applicant is a person to whom Australia owes protection obligations under the Refugee Convention. The material before the Tribunal did not oblige it to be so satisfied. 15 In considering whether or not to reopen the default judgment, the learned Federal Magistrate comprehensively reviewed and analysed the grounds of review specified by the Applicant in the application which he made to that court. The draft notice of appeal is stated at a level of generality which makes it well nigh impossible to identify the error which the learned Federal Magistrate is supposed to have made. Having, for the purposes of this application, reviewed the way in which the learned Federal Magistrate dealt with the nominated grounds of judicial review, I can see no error of law. 16 The Applicant gave oral evidence before me as to non-receipt of notice of the hearing before the Federal Magistrates Court. It seems that, apart from his then residential address as nominated by him on the application, he had a postal address. I note, though, as did the Federal Magistrate, that the date, time and place of the first date of hearing was endorsed on the application given back to him by that court upon its filing. In this sense, he did have notice from that court of when the first date of hearing was to occur and where. It seems to me that the Federal Magistrates Court has properly dealt with the reopening application, in the sense that the court has looked both to whether there was an acceptable explanation for the failure to attend, as well as considering the prospects of success of the judicial review application in any event.