FEDERAL COURT OF AUSTRALIA

SZFFM v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 944

MIGRATION – application for leave to appeal from Federal Magistrate – no issue of principle – application dismissed

SZFFM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 894 OF 2005

CONTI J

7 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant to pay the respondent’s costs assessed at $1000.

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from a Federal Magistrate’s refusal on 17 May 2005 to set aside an order summarily dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 9 July 2002.  The Tribunal affirmed the decision of a delegate of the Minister refusing the applicant a protection (Class XA) visa.  The applicant did not seek review of the Tribunal’s decision by the Federal Magistrates Court until 13 December 2004 when an application was filed.  Since the applicant did not appear at his scheduled hearing on 14 April 2005, the Federal Magistrate summarily dismissed the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.  Rule 16.05 of the Rules gives a Federal Magistrate the discretion to set aside an order if it is made in a party’s absence.  On 3 May 2005, the applicant applied to have the Federal Magistrate’s summary dismissal set aside pursuant to that rule.  It is from the Federal Magistrate’s decision to refuse to exercise her discretion in the applicant’s favour that he now seeks leave to appeal. 

2                     The Federal Magistrate’s refusal to set aside her earlier order summarily dismissing the application for review did not finally determine the legal rights of the parties and was therefore interlocutory:  Re Luck (2003) 203 ALR 1.  As such, the applicant was required to seek leave to appeal from that judgment:  Federal Court of Australia Act 1976 (Cth) s 24(1A).  The applicant filed an application for leave to appeal from the Federal Magistrate’s decision on 3 June 2005 which is within the 21-day time-limit prescribed by Federal Court Rules 1976 (Cth) O 52 r 5(2).  I need therefore not consider the principles relating to the grant of enlargements of time in which to bring applications for leave to appeal.

3                     The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment ‘in the general run of cases’ were outlined by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431.  Those are first, whether in all the circumstances the interlocutory decision is attended by ‘sufficient doubt’ to warrant reconsideration by a court on appeal.  Secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  In her written submissions, solicitor for the Minister also referred to the judgment of Hely J in NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 at [12], in which his Honour said:

‘In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances.  It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case that there was some purpose in doing so.  In other words he had to show an arguable case that the [Tribunal’s] decision should be quashed on the grounds of jurisdictional error.  The appellant did not do so.’

4                     The Minister submits that leave to appeal should not be granted for the following reasons:

(i)                  The applicant did not attend his hearing before the Tribunal in spite of being informed in writing by the Tribunal that ‘the Tribunal has looked at all the material relating to your application but is not prepared to make a favourable decision on this information alone’.  The Tribunal’s decision had regard to each of the purported claims made by the applicant in his protection visa application but was unable to be satisfied that those claims established a well-founded fear of persecution due to the lack of detail provided by the applicant. 

(ii)                The applicant has not been able to demonstrate that the decision of the Federal Magistrate is attended with sufficient doubt or ‘show an arguable case that the Tribunal’s decision should be quashed on the grounds of jurisdictional error’. 

In support of the second reason, the Minister drew my attention to the affidavit filed by the applicant which is in the following terms (read literally):

‘1.  I didn’t attend the hearing at Federal Magistrate on 14^th April as I was thinking that my hearing is at 2.15pm, and it was at 10.15am.

2. I was confused with my hearing as I was released from Villawood Detention Centre on 9^th April and my hearing was on 14^th April.

3. I made an big mistake by getting confused with my timing, in this regard I even ring Clayton Utz lawyer about my timings on 14^th April.

4. Because of change of diet, I was also sick on 14^th and 15^th April with gastroenteritis.

Later on 3 May, I applied for interlocutory application and it was also been dismissed, though I provided medical certificate on 17^th May.

Finally I admit that I got less time to provide documents related to my application and as I was sick and confused with my timings of my hearing, my application was been dismissed. 

So I request to provide me an opportunity to prove that I am refugee and further I will be very cautious about my hearings timings.’

5                     The two explanations provided by the applicant for his failure to attend his initial hearing on 14April 2005 were the same as those put to the Federal Magistrate when her Honour heard the applicant on the setting aside motion.  The Federal Magistrate observed that the applicant did not mention this alleged illness to the Clayton Utz solicitor he spoke to on the afternoon of 14 April 2005; his reason then being that he was confused about the hearing time.  Her Honour also pointed out that the medical certificate that he produced in Court did not specifically preclude him from attending court.  In any event the Federal Magistrate considered the relevant principles informing the exercise of the discretion to set aside orders and determined that to do so would be futile since there was nothing to suggest that the applicant had an arguable case or question that needed to be tried. 

6                     The Federal Magistrate considered all conceivable grounds for review raised by the applicant orally and in writing, and found that they were vague and unparticularised.  Her Honour addressed the circumstances leading up to the Tribunal hearing and concluded that the Tribunal did everything that it could to discharge its duty under s 425 of the Migration Act 1958 (Cth) to invite the applicant to a hearing.  Various letters were sent to the applicant’s nominated address and to his registered advisor who later wrote back to the Tribunal informing them that ‘after taking every possible measure to contact the client, we regret to state that the applicant cannot be contacted’.  The applicant informed the Federal Magistrate that he had moved but that he had not notified the Tribunal of that in spite of specific requests to do so made in a letter sent to the applicant by the Tribunal three days after he filed his application for review.  Finally, the Federal Magistrate briefly reviewed the Tribunal’s discussion of the applicant’s claims to have a well-founded fear of persecution on his return to India and concluded that no jurisdictional error arose on the face of that decision. 

7                     Before me today, the applicant was unable to articulate any error in the Federal Magistrate’s decision or in that of the Tribunal.  Nor was he able to point to any infringement of the principles of procedural fairness.  The applicant submitted that he never received an invitation to the Tribunal and he asked the Court for an adjournment of two to three weeks in which to obtain further documentation from his brother in India.  When I asked the applicant what was the nature of this further documentation he merely said that it supported his story about how he is a refugee.  He did not answer me when I asked him why he had not already attempted to obtain this documentation.  There is therefore nothing before the court to suggest that the applicant has any prospect of establishing any ground of review and I conclude that the application for review is hopeless and that it would be futile for the court to grant leave to appeal. 

8                     I dismiss the application for leave to appeal and order the applicant to pay the Minister’s costs assessed at $1000.

Associate:

Dated:              8 July 2005