SZUQU v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) 1 This is an application for an extension of time and leave to appeal from the dismissal of the applicant's judicial review proceedings in the Federal Circuit Court of Australia. That dismissal occurred as a result of a self-executing order made by Judge Driver in the Federal Circuit Court which provided for dismissal of the proceedings in the event that an amended application was not filed by a specified date. The amended application was not filed by the specified date. It would appear from the terms of the order that the dismissal took effect from 8 April 2015. 2 The background to this application is as follows. The applicant is a citizen of Sri Lanka. He applied to the Minister for Immigration and Border Protection for a protection visa. That application was refused. He then applied to the Refugee Review Tribunal (the Tribunal) for a review of that refusal decision. The Tribunal dismissed that review application on 13 June 2014. The applicant then apparently applied to the Federal Circuit Court for judicial review of the Tribunal's refusal decision. It is the dismissal of that application that is the subject of the application for an extension of time and leave to appeal. 3 Leave to appeal is necessary because the order dismissing the application in the Federal Circuit Court was interlocutory in nature: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An extension of time is necessary because an application for leave to appeal was not filed within 14 days of the order being made: see r 35.13 of the Federal Court Rules 2011 (Cth) (the Rules). 4 The application for an extension of time and leave to appeal was filed electronically on 12 May 2015. Also filed on that date was an affidavit sworn by the applicant in support of his application. Rule 35.14(3)(c) of the Rules provides that an affidavit in support of an application for an extension of time must state briefly but specifically, the facts upon which the application relies, and why the application for leave to appeal was not filed within time. 5 The affidavit filed by the applicant in support of his application is brief. It provides inadequate support for his application for at least two reasons. First, it provides an inadequate explanation for why the application for leave to appeal was not filed within time. At its highest, the affidavit establishes no more than that the applicant's solicitor had tried to contact him "since" 8 April 2015, but was unable to make contact. Exactly what was done in that regard and why it was not possible for the applicant's solicitor to contact him is not explained at all. 6 Second, the affidavit provides no proper explanation for how the self-executing order came to be made. More importantly, it provides no satisfactory explanation for why the applicant failed to meet the timetable for the filing of an amended application. That is, the affidavit filed by the applicant provides inadequate evidence as to how his proceedings came to be dismissed. 7 From what has been said in the affidavit, and from the terms of the order, it would appear that the applicant's judicial review application was listed for a show cause hearing in the Federal Circuit Court. The applicant appears to have retained a barrister shortly prior to the hearing. As a result, and presumably because the barrister applied for leave to file an amended application, the show cause hearing was vacated. The self-executing order providing for dismissal if the amended application was not filed in accordance with the order was presumably made given the circumstances in which the show cause hearing was vacated. The only explanation for why the amended application was not filed within the time provided is that this was due to an "administrative delay" or for "administrative reasons". That is plainly an inadequate explanation. 8 There are at least two other manifest problems with the application for an extension of time and leave to appeal. 9 First, the applicant did not comply with r 35.14(3)(d) of the Rules, which requires the filing of a draft notice of appeal. Whilst the application that has been filed includes what appears to be grounds of appeal, most of the grounds relate to the decision of the Tribunal which was the subject of the judicial review application. Obviously, the Federal Circuit Court did not, in the circumstances, deal with the merits of the challenge to the Tribunal's decision. The proposed grounds of appeal are, therefore, inappropriate. The only ground of appeal that is relevant to the dismissal of the application by the Federal Circuit Court simply asserts a denial of procedural fairness. This ground is presumably directed at the self-executing nature of the order and the fact that the proceedings were dismissed in the applicant's absence. 10 For the reasons already given, however, the evidence fails to deal adequately with the circumstances in which the order came to be made and the reasons why the applicant did not comply with the order that he file an amended application by the specified date. It is, therefore, not possible on the limited material in this Court to consider whether the ground asserting denial of procedural fairness has any merit. 11 Second, and more fundamentally, it is, to say the very least, doubtful whether the grant of leave to appeal is appropriate in any event given the terms of r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). That rule provides, in effect, that the Federal Circuit Court may set aside an order after it has been entered if the order was made, inter alia, in the absence of a party or if the order was interlocutory. 12 It follows that it was, and perhaps still is, open to the applicant to apply to the Federal Circuit Court to have the order dismissing his proceedings, which is the subject of the proposed appeal, set aside. That is because the order was made in his absence and, in any event, was interlocutory in nature. An application to the Federal Circuit Court pursuant to r 16.05 of the FCC Rules would plainly be the appropriate course for the applicant to take. If the order was set aside, the applicant would then be in a position to pursue his judicial review application. 13 The inappropriateness of the grant of leave to appeal or the extension of time in such circumstances has been the subject of previous consideration by this Court: see NAQB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 562 and SZCEC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 361. 14 The applicant, who is unrepresented, did not file any written submissions. In his oral submissions in support of his application, the applicant simply outlined a litany of complaints about his former lawyer. It is unnecessary to repeat those complaints. 15 The applicant also applied for an adjournment of these proceedings so that he could have more time to obtain a lawyer to assist him. The Minister opposed any adjournment of the proceedings. It would appear from the evidence relied on by the Minister that the applicant's former solicitor filed a notice of intention of ceasing to act as early as 14 October 2015. That notice was sent by registered post to the applicant on 7 October 2015. It would also appear that the Minister's solicitor, immediately upon becoming aware that the applicant's former solicitor had ceased to act, wrote to the applicant and pointed out, amongst other things, the terms of r 16.05 of the FCC Rules. The letter also invited the applicant to consider his position in the proceedings. 16 In the circumstances, there is no point in adjourning the proceedings. In any event, the applicant has provided an unsatisfactory and inadequate explanation for why he is not in a position to proceed. If he genuinely wanted to retain a new lawyer, the applicant has had plenty of time to do so. 17 In light of all of these difficulties, the application for an extension of time and leave to appeal must be dismissed. I am not satisfied that the applicant has provided a satisfactory explanation for why an application for leave to appeal was not filed within the prescribed time. I am not satisfied on the limited material before the Court that the proposed appeal has any merit in any event. Nor am I satisfied, in light of r 16.05 of the FCC Rules, that an appeal to this Court from the order is warranted or appropriate. The appropriate course, as I have already indicated, would plainly be for the applicant to apply to the Federal Circuit Court under r 16.05 of the FCC Rules for an order setting aside the dismissal order. For those reasons, the application for an extension of time and leave to appeal is dismissed. 18 The Minister, as the successful party, has applied for a costs order. The only submission made by the applicant in opposition to that course is, perhaps not surprisingly, that he is impecunious. Unfortunately for the applicant, that is not a good reason why costs should not follow the event. Accordingly, it is appropriate for the Court to order that the applicant pay the costs of the Minister. The Minister has also applied to change the name of the second respondent from the Migration Review Tribunal, which would appear to be an incorrect party in any event, to the Administrative Appeals Tribunal. That order would also be appropriate. 19 Accordingly, the orders of the Court are as follows: