FEDERAL COURT OF AUSTRALIA

Suleyman v Minister for Immigration & Multicultural Affairs

[2000] FCA 1540

ZAKARIYA SULEYMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 547 OF 2000

BEAUMONT, NORTH and GYLES JJ

SYDNEY

23 AUGUST 2000

AN APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Appeal dismissed.

2.                  Appellant pay the respondent’s costs of the appeal and of the motion for adjournment.

3.                  No order as to costs of the respondent’s motion for dismissal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AN APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GYLES J:

1                     On 12 May last, Mathews J dismissed an application by Zakariya Harun Suleyman (Farah) ("the appellant") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of the Minister for Immigration and Multicultural Affairs’ delegate to cancel the applicant's protection visa pursuant to s 109 of the Migration Act 1958 (Cth) ("the Act").

2                     On 25 May last, the appellant filed a notice of appeal raising three grounds and grounds one to three will be set out in the judgment.  After filing the notice of appeal, the appellant attended a callover before Beaumont J on 7 June.  On 26 June he failed to attend the appointment to settle the appeal papers before the Registrar. 

3                     The appellant attended a further appointment to settle the appeal papers, which was listed for 13 July and, at that time, an appeal book index was settled, despite the appellant not having filed a draft index.  The Registrar provided the appellant with copies of guidelines for preparation of appeal books and a precedent to assist him.  The Registrar directed that a settled index be filed by 18 July 2000 and that the appeal books be filed and served by 4 August 2000.  No appeal books have been filed.

4                     At a directions hearing in this matter on 14 August 2000, the appellant said words to the following effect:

“I do not have the resources to do the appeal books and I have been too sick to prepare them.  I want the hearing delayed for at least six weeks.  I have a medical certificate.” 

5                     The respondent, the Minister for Immigration & Multicultural Affairs, filed a notice of motion on 13 July 2000 for dismissal of the appeal for want of prosecution and on the basis that the proceeding is an abuse of the process of the court.  On 14 August, the appellant filed the notice of motion for an adjournment of the appeal.  His affidavit in support of that application said:

“This is to inform the court that I am currently ill taking medication for flu and asthma.  Due to this illness, I am unable to prepare, present and make submissions for this hearing.  I request the court delay hearing this matter for at least six weeks.”

and with the papers there is a medical certificate as to the applicant suffering from asthma and something else I cannot read, and which stated the applicant was unfit to work from 10 August to 24 August.

6                     In any event, the appellant was cross-examined and it appears that, during the period since the judgment in May, the appellant has chosen to concentrate his attention upon some proceedings before the Administrative Appeals Tribunal and some activities concerned with obtaining employment rather than with these proceedings.  Indeed, the evidence was that the proceedings in the Administrative Appeals Tribunal was taking place during the period of the claimed illness.

7                     Yesterday it was made clear to the appellant on directions that the appeal would be listed for hearing and that the hearing of it would depend upon the result of the two motions which had been filed. 

8                     So far as the appellant's motion for an adjournment is concerned, there is, in my opinion, no explanation, let alone an excuse, for failure to prepare for this hearing.  There has been ample time to do it and his choice to concentrate on other matters is his choice and does not derogate from his duty to duly prosecute this appeal.

9                     As the Full Court said in Addai v Minister for Immigration & Multicultural Affairs [1999] FCA 1702, par 13, there is a significant public interest in having this kind of application, that is an application for visas, dealt with promptly.  In the present case the appellant made his first application for a visa on 14 December 1993. The judgment in Addai v Ministger for Immigration & Multicultural Affairs (supra)also points out that the adjournment of proceedings whether first instance or appeal disrupts the business of the court to the disadvantage of other litigants who comply with the rules.

10                  The court was of the view that there was no proper case made out for an extended adjournment in order to prepare for the hearing, although it was of the view which was stated yesterday that a short adjournment would be allowed either to the afternoon of that day or until today to enable the matter to be prepared and presented.  In coming to this view the court also did, at that stage, in a relatively superficial way, consider the merits of the proposed appeal.  Of the two alternatives offered the appellant chose to pursue the hearing today.

11                  Today, the court has proceeded to hear argument on the appeal itself, with the intention of dealing with the Minister’s motion for dismissal when we dispose of the appeal.  In the course of argument yesterday, it was pointed out by counsel for the Minister that of the three grounds which are taken in the notice of appeal only one was taken before the primary judge, that is, conceded by the appellant and appears clearly from her Honour's judgment. 

12                  The Minister objects to the other two grounds being pursued.  Those grounds were not taken below and can be taken by us at this stage to have relevantly not been part of the application before the primary judge.  My consideration of each of those grounds in the light of the submissions which have been made by both parties is that for this court now to consider them would require examining with some care not only the reasons of the tribunal but also the processes of the tribunal, internal and otherwise. 

13                  We simply have no material before us to enable this to be done.  It would be a course which would only be undertaken by a full court in very unusual circumstances and, in my view, no unusual circumstances have been proposed here.  The decision of the tribunal was delivered on 23 December last year.  The matter was argued before the primary judge in early May of this year.  The appellant was then represented by a solicitor who is very experienced in these matters.  He has made clear that the solicitor regarded what has become known as the “Teoh point” as being the point of merit to be pursued.  The appellant says that he only instructed the solicitor late and that preparation was for that reason attenuated.  There is no affidavit of evidence of any of this and the respondent has been unable to cross examine upon it, but the unadorned facts are that for nearly five months the appellant was in a position to prepare the application for her Honour. 

14                  The fact that he chose to, or was only able to, obtain legal advice at the last moment does not detract from the situation that time had been available to him and indeed, as I have said, we have no evidence from him as to what took place during that period.

15                  Furthermore, such examination as I have been able to make of the grounds during the course of argument would disclose, again on a fairly superficial view, that there will be very considerable difficulties in establishing either ground.  They do not appear to me to present very much merit. 

16                  I am troubled that if leave were given to pursue these two grounds of appeal either this court would have to enter a factual consideration of these matters, not on this occasion but on some later occasion, displacing other cases in order to do so and leading to further unfortunate delay or, more conventionally, we would send the matter back to the primary judge to enable the primary judge to consider those matters in the normal way giving this full court or a full court the opportunity in due course, if it were necessary, to consider the matter against reasons and findings of fact made below. 

17                  This, again, would be in my view not in the public interests and no case has been made out for such an unusual course.  It is unnecessary to cite extensive authority for the proposition but it is only in the most extraordinary case that points can be raised on appeal for the first time which involve any examination of evidence which is not before the primary court.  A reference to Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CRL 1 are adequate for the purpose.  I would, therefore, not permit the grounds not taken below to be raised.

18                  Turning then to the ground which is properly raised, namely, that which has been called the “Teoh point”, this issue was squarely before the primary judge and was dealt by her on several bases.  Between pars 39 and 43, her Honour considered the question whether the tribunal did act in accordance with the convention making the assumption for that purpose that it might be regarded, contrary to her view, as a matter of substance. 

19                  The judge's conclusion in par 43 was that in the circumstances of this case a fair reading of the Tribunal's decision indicated that it gave every weight to the best interests of the applicant's daughter.  If anything, its findings in this regard were over generous to the applicant.  I can find no error in the process by which the tribunal reached its decision. 

20                  I have considered the Tribunal decision and have considered the arguments which have been presented and I also can find no error in the process by which the Tribunal reached its decision and, in particular, I agree with her Honour that the Tribunal gave appropriate weight to the best interests of the applicant's daughter.  That conclusion requires that the appeal be dismissed and it is unnecessary to consider some of the more controversial aspects of the judgment below. 

21                  By saying that, I do not mean to indicate or cast doubt upon those points.  It is simply that I do not believe that we need to address them.  I therefore would dismiss the appeal.  I would order that the appellant pay the costs of the Minister of the appeal and of his motion for adjournment.  It becomes unnecessary to deal with the motion for dismissal for want of prosecution brought by the Minister and I would make no order for costs in relation to that motion.

BEAUMONT J:   I agree.

NORTH J:  I also agree.

BEAUMONT J:   The formal orders of the court therefore will be as pronounced by Justice Gyles.  The court will now adjourn.

Associate:

Dated:              1 September 2000