SZNRO v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant applied for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) by an application dated 22 May 2009. The judicial review hearing was listed to be heard on 26 October 2009. The appellant did not attend that hearing. 2 The Federal Magistrate in an extempore decision dismissed the appellant's application for judicial review. In dismissing the application, the Federal Magistrate had regard to each of the three grounds of review referred to in the appellant's application for judicial review. The Federal Magistrate observed: On 1 September 2009, the [appellant] filed an amended application…The grounds of the application appear to make three complaints. Ground 1 alleges that the Tribunal failed to comply with an undertaking that it gave to the [appellant] to make written submissions to the Tribunal about inconsistencies in his evidence which led the Tribunal to have concerns about the [appellant's] credibility. A copy of the Tribunal's decision record is annexed to the [appellant's] affidavit, filed on 19 June 2009, in support of his application to this Court. The Tribunal decision record does not make mention of the undertaking alleged by the [appellant] in ground 1. Such an allegation would otherwise require the support of evidence. As stated above, none has been filed in support of the [appellant's] application. Ground 2 appears to assert that the invitation to come to a hearing, sent to the [appellant] by the Tribunal on 5 March 2009, included a request for additional information which the [appellant] asserts should have been made in accordance with s 424 of the Migration Act 1958 (Cth) (the Act). That issue has been recently settled by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48] per the Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) and by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 at [20]-[21] per the Court (Stone, Jacobson and Jagot JJ). Ground 3 of the amended application asserts that the [appellant was] not given country information to which the Tribunal had regard, in breach of s 424A of the Act. The Tribunal's decision record makes clear that the Tribunal discussed the country information to which it had regard and the information to which it had regard was about a class of persons of which the [appellant] claimed to be one. In the circumstances, such information is excluded from the obligations of s 424A(1) of the Act by reason of s 424A(3)(a) of the Act. Whilst I make no final finding in respect of the [appellant's] grounds, they are fraught with difficulties as referred to above. (Original emphasis.) 3 After the Federal Magistrate had dismissed the application, a medical certificate in respect of the appellant's condition was delivered to the Federal Magistrate's chambers later that morning. The medical certificate was dated 26 October 2009 and stated that the appellant had been seen at Griffith Hospital on 26 October 2009 and was unfit for work for that day. The remarks on the medical certificate stated: Muscular low back pain injury. No neurological deficit. 4 On 9 December 2009, the Federal Magistrate heard an application by the appellant for the reinstatement of his application for judicial review of the Tribunal's decision. 5 At that hearing, the appellant relied upon an affidavit affirmed by him on 20 November 2009, in which he stated that he did not attend the hearing because of his "sever [sic] illness" and that he had sent a medical certificate to the Federal Magistrates Court. The appellant was cross-examined. During the cross-examination, the appellant said that he did not attend the Court hearing on 26 October 2009, because he had severe stomach pains on the weekend prior to the hearing. 6 The Federal Magistrate dismissed the appellant's application to reinstate his application for judicial review. 7 In her reasons for decision, the Federal Magistrate said that there was no reasonable explanation for the appellant's failure to attend the hearing on 26 October 2009. The Federal Magistrate found the appellant to be an "entirely unsatisfactory witness". The Federal Magistrate commented on the fact that the medical certificate made no reference to any stomach pains and referred only to "muscular low back injury". The Federal Magistrate also commented that the gist of the appellant's evidence in cross-examination was that because his stomach pains came and went, he needed to make some other medical complaint in order to obtain a medical certificate. The Federal Magistrate said that the medical certificate did not "address at all the capacity or ability of the [appellant] to have attended the hearing…". 8 The Federal Magistrate said that, for the reasons previously stated, the grounds of the application had no reasonable prospect of success and there would, therefore, be no utility in setting aside the orders made dismissing the appellant's application for judicial review. 9 The Federal Magistrate observed that the appellant had received the reasons which the Federal Magistrate had given for dismissing the appellant's application for judicial review on 26 October 2009. As mentioned, these reasons dealt specifically with each of the three grounds of review relied upon by the appellant. The Federal Magistrate went on to say that the appellant had not produced any draft further amended application. Nor had the appellant been able to "verbalise any other ground or complaint". 10 The Federal Magistrate said that she would have come to the decision not to reinstate the application for judicial review, even if there had been a reasonable explanation for the appellant's failure to attend the hearing on 26 October 2009. 11 The decision of the Federal Magistrate was interlocutory and so the first respondent's objection to competency is upheld. However, I have treated the notice of appeal filed by the appellant as an application for leave to appeal against the decision of the Federal Magistrate. 12 In order for the Court to grant leave to appeal against an interlocutory judgment, it is necessary that the Court is satisfied that the decision of the primary judge is attended with sufficient doubt and that a substantial injustice would arise if the Court refused leave to appeal. 13 In my view, the appellant has not demonstrated that the decision of the Federal Magistrate is attended with sufficient doubt. The medical certificate provided by the appellant did not state that the appellant's medical condition was such as to render him unfit to attend the hearing (NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [24]). Further, the appellant was cross-examined in respect of his medical condition and gave unconvincing evidence. It was open to the Federal Magistrate to come to the view that there was no reasonable explanation for the failure by the appellant to attend the Court hearing on 26 October 2009, and that there was no reasonable prospect of success on the grounds of review. 14 Further, no substantial injustice would befall the appellant because the Federal Magistrate did in her reasons of 26 October 2009, consider each of the three grounds relied upon by the appellant in his original application for judicial review and found that they had no reasonable prospects of success. In my view, for the reasons given by the Federal Magistrate, she did not err in coming to that view. 15 Before me, the appellant said that before the Federal Magistrate he was only asked questions about the medical certificate. I took that to comprise a complaint that he had not had the opportunity to address the Federal Magistrate on the merits of his application. There was no evidence of a transcript before the Court of the proceeding before the Federal Magistrate. However, in any event, the judgment of the Federal Magistrate makes it clear that the appellant did have an opportunity to address the Federal Magistrate on the grounds of his judicial review application. 16 Insofar as the appellant's complaint was that he did not have an opportunity to address the Federal Magistrate on the merits of his claim to be a refugee, he was not entitled to such an opportunity, as part of a judicial review of the Tribunal's decision. 17 Accordingly, the first respondent's objection to competency to the appellant's notice of appeal dated 15 January 2010, is upheld and the appellant's application for leave to appeal,