SZQWE v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 These proceedings concern an application under rule 36.05 of the Federal Court Rules 2011 for an extension of time to appeal from orders of the Federal Magistrates Court of Australia made on 17 May 2012 dismissing the applicant's application for particular relief in relation to recommendations of an Independent Merit Reviewer (the "Reviewer") to the Minister for Immigration and Citizenship concerning the applicant's claim as an offshore entry person (an "OEP") to be owed protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol, as part of a process (called a Refugee Status Assessment ("RSA")) established by the Minister for the purposes of s 46A(2) of the Migration Act 1958 (Cth). 2 The application before the Federal Magistrates Court was an amended application filed on 1 March 2012 in which the applicant sought a declaration that the recommendation of the Reviewer was "not made in accordance with law, by reason of the ground/s of this application" and an injunction restraining the Minister from relying upon the recommendation of the Reviewer. 3 The application was listed for hearing at 10.15am on Wednesday, 28 November 2012 in Court Room 19C of the Law Courts Building, Queens Square, Sydney. At 10.15am the applicant did not appear and after having called the matter outside the Court Room, the applicant made no appearance. The applicant, however, was given notice that the matter would be heard in Court Room 19B of the Law Courts Building, Queens Square, Sydney which is on the same floor as Court Room 19C. After it became clear that no response had been made to the calling of the matter outside Court Room 19C, I directed the Court Officer to call the matter outside Court Room 19B as well. There remained no appearance. 4 I gave leave to read and file the affidavit of Sheaj Sayers sworn 21 November 2012. 5 That affidavit deposes to service of a copy of the respondent's written submissions upon the applicant by courier at 104 Pendle Way, Pendle Hill, NSW, 2145 and at 133 Pendle Hill Road, Pendle Hill, NSW, 2145 by Express Post. The submissions in each case were enclosed in a letter dated 14 November 2012 from the Solicitors for the respondents, DLA Piper Australia, to the applicant that gave notice to the applicant that the matter would be heard on 28 November 2012 at 10.15am as previously described. For the assistance of the applicant, a map was enclosed in the letter dated 14 November 2012. Clearly enough, the lawyers for the first respondent were seeking to help the applicant in finding the physical site for the Court hearing. 6 However, the enclosed map is a map setting out various locations at which proceedings before the Federal Magistrates Court of Australia are conducted, rather than a map with specific reference to the Federal Court of Australia. The map bears a large heading under the Coat of Arms "FEDERAL MAGISTRATES COURT OF AUSTRALIA". Six locations are shown on a map of the central business district in Sydney. One of the sites shown on the map is a reference to "QUEENS SQUARE (Court & Registry)". The map may well be confusing to a person such as the applicant who is a Sri Lankan citizen who requires the assistance of an interpreter. Because the map bears a prominent reference to a Court other than the Federal Court of Australia and the applicant is a Tamil who has no English fluency, I cannot be satisfied that the failure of the applicant to appear on 28 November 2012 is not attributable to the applicant attending one of the other sites depicted on the map or, alternatively, finding difficulty in identifying the precise location of the Federal Court of Australia at Queens Square by reference to the map. Accordingly, it seems to me inappropriate to determine the merits of the application (or otherwise determine the application on a procedural basis of non-attendance) on the footing that the applicant has failed to appear and has chosen not to agitate the merits of his application or otherwise abandon the application. Other cases may well be entirely different on the facts in the sense that an applicant with English language skills might, by reference to the map, locate the Queens Square Law Courts Complex and find the particular identified Court within the Complex. However, in circumstances where the applicant has no English fluency and one of the questions alive in the proposed challenge is a failure to properly provide information and translation services to the applicant in the course of the exchanges between the Reviewer and the applicant, a determination of the application in the circumstances I have described is not in the interests of justice. 7 On Wednesday, 28 November 2012, I made orders that the application be dismissed with costs. Having regard to the matters described at [5] and [6] of these reasons, I propose to vacate, pursuant to rule 1.32 of the Federal Court Rules 2011, the orders made yesterday and make further orders that the application be adjourned to a date to be fixed by the Registry of the Court. The application will then be heard and determined on that date. The costs will be reserved. 8 When the matter is re-listed by the Federal Court Registry, the matter will be re-listed before me as I am familiar with the underlying facts and issues raised by the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.