FEDERAL COURT OF AUSTRALIA

SZKRJ v Minister for Immigration and Citizenship (No2) [2008] FCA 664

Federal Court of Australia Act 1976 (Cth) s 25(2B)(b)(ii)

Migration Act 1958 (Cth)

SZKRJ v Minister for Immigration and Citizenship [2008] FCA 271 cited

SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 cited

SZKRJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

nsd 2385 of 2007

LOGAN J

9 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of and incidental to the application to be taxed.

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

REASONS FOR JUDGMENT

1                     On 4 March 2008 this proceeding was listed before me for the hearing of an appeal by the Appellant against a decision of the Federal Magistrates Court given on 15 November 2007.  On that date the Federal Magistrates Court had concluded that no jurisdictional error had been shown in respect of a decision of the Refugee Review Tribunal (“Tribunal”) which was made on 16 April 2007.  Accordingly that court had dismissed the judicial review application.

2                     When the appeal was called on for hearing on 4 March 2008, the Appellant failed to appear.  In the exercise of the power conferred by s 25(2B)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”), I thereupon dismissed the appeal : SZKRJ v Minister for Immigration and Citizenship [2008] FCA 271.  On 4 April 2008, the Appellant filed a notice of motion by which she sought that the orders made on 4 March 2008 be set aside and that appeal proceed.  She filed an affidavit in support of that application that same day.

3                     The order which I made on 4 March 2008 was entered on 12 March 2008. 

4                     The nature of today’s application therefore is, in effect, for the reopening of the appeal as a consequence of a requested setting aside of an order of dismissal. 

5                     In SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648, Jacobson J had occasion to consider the power of the court to entertain a notice of motion to set aside an order dismissing an appeal where an Appellant had failed to appear.  The circumstances of that case were slightly different to the present in this sense, in the proceedings before Jacobson J the application to set aside the dismissal order was filed before the entry of the dismissal order.  As it happened, his Honour considered that there were two sources of power to set aside the dismissal order.  One related to the fact that the application had been made before the formal entry of the order.  That need not be explored further in the circumstances of this case.  The nature of the other basis of power is neatly summarised by the following quote from his Honour’s decision at para 4:

The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26]-[33] and the authorities there cited; see also DJL v Central Authority (2000) 201 CLR 226 at [189].

6                     It was accepted by counsel appearing for the Minister that the Court has power to set aside the orders made by me on 4 March 2008.  Having regard to the passage which I have quoted from Jacobson J’s judgment and the authorities mentioned by his Honour, I am quite satisfied that this concession was appropriately made in law. 

7                     The principles to be applied in relation to the consideration of an application of this kind are, in my opinion, as follows:

1.                  is there a satisfactory explanation in respect of the failure to attend at the time and place appointed for the hearing of the appeal;

2.                  what are the merits of the prospective appeal in the sense that, does it enjoy at least a reasonable prospect of success. 

8                     Though separate, those considerations are not unrelated in the sense that a case which had patent merit might well attract a favourable exercise of the power to set aside a dismissal order, even though one might have reservations as to whether the explanation for absence was satisfactory.  The prejudice occasioned by the initial failure to attend in such circumstances to the Respondent party could be ameliorated by an appropriate order in respect of costs, were the appeal successful.  I proceed then to consider the application having regard to each of the considerations that I have mentioned. 

9                     The Appellant adopted her affidavit by affirmation in the witness box, the contents of the affidavit, which is expressed in English, having been translated for her by the court interpreter.  That was a particularly necessary exercise, given that, unfortunately, there is no indication on the face of the affidavit that it was translated for her prior to her “swearing” the affidavit.  I should also indicate that it seemed to me appropriate, given that it was not immediately practicable to administer a form of oath according to the rights of the Hindu faith, which the Appellant professed for her to make an oath in the witness box. 

10                  It is most important in cases where English is not the first and familiar language of a deponent, that those taking affidavits do not permit them to be sworn or affirmed as to the veracity of the contents of an affidavit without the affidavit having been translated, first, into a language with which the deponent is familiar.  Moreover, a certificate to the effect that this has been undertaken needs to be appended to an affidavit. 

11                  So far as the reason why the Appellant did not attend on 4 March 2008 is concerned, her affidavit deposes as follows:

Due to my failure at court case, study failure, and fear to return overseas due to Maoist of Nepal, I am very depressed.  I cannot sleep properly and do not have confidence to face any more failure.  I had my court hearing on 4 March 2008 (Federal Court).  (My brother who support me from beginning was overseas at that time).  I could not attend my hearing due to my weakness and depression. 

12                  The Appellant confirmed these reasons in her oral evidence.  She was cross-examined by counsel on behalf of the Minister.  In the course of that cross-examination, she stated that she did attend a medical practitioner prior to the hearing of the appeal fixed for 4 March 2008.  She stated that she had been given a medical certificate but that she didn’t bring it with her today because she had not been asked to.  She also stated that she had done nothing to advise either the Court or the Minister’s representatives that she would not be attending on 4 March 2008 because of a medical condition. 

13                  The submission made on behalf of the Minister was that this explanation was weak.  Particular emphasis was made of the prospect that the acceptance of such an explanation would serve to encourage the prolongation of a stay in Australia by a prolongation of judicial process.

14                  It is not for an Appellant to be told to bring with her a medical certificate which might serve to corroborate a claim to have been suffering from a depressive medical condition.  I have no doubt that a tremendous feeling of disappointment must accompany the disposal of visa applications, and not just refugee visa applications, in an unfavourable way.  That disappointment, though, is not a license to fail to attend judicial proceedings at the time and place appointed.  Especially that is so on the part of a person who has sought to engage the judicial power of the Commonwealth so as to challenge a decision made by an officer of the Executive Government. 

15                  Of course someone who has illness which prevents their prosecution of an appeal should receive sympathetic consideration in respect either of an adjournment of that appeal where evidence of that illness is made known in advance to a court.  Of course also, an application for the setting aside of a dismissal order made in absentia, should receive like sympathetic consideration in the face of a disabling illness proved by evidence to have been a reason for non-attendance, providing of course that the appeal itself has some reasonable prospect of success. 

16                  I must say that I have reservations as to whether the Appellant’s claimed depressive condition was of a severity that would have prevented her either from attending on 4 March 2008, or at least observing the basic courtesy, either by herself or someone acting for her and with her authority, of notifying the court and the Minister’s representatives, in advance of non-attendance based on illness.  In the ordinary course of events, such signification ought to be accompanied by a certificate from a medical practitioner which specifically addresses the question of fitness to attend and argue an appeal.  It seems to me a matter of common sense that an application of this kind ought to be accompanied by a medical certificate of the kind mentioned by the Appellant. 

17                  As it happens, it is unnecessary for me to reach a concluded view on the adequacy of the explanation given. That is because of the view to which I have come in relation to the prospects of success of the appeal. 

18                  The grounds of appeal as specified in the notice of appeal are as follows:

1.                  That the Federal Magistrate fell into error in failing to find that the Tribunal fell into jurisdictional error by finding on the basis that the Appellant’s past travel and residency patterns that she was not a person to whom Australia owed protection obligations without giving sufficient consideration to the reasons by the travel and residency patterns.

2.                  The Federal Magistrates Court erred in failing to find that the Tribunal fell into jurisdictional error and found to comply with s 430(1) of the Migration Act 1958 (Cth) (“Migration Act”) by failing to set out the reasoning underlying its finding that the Appellant’s claims that she was subject to extortion demands on her return to Nepal in 2006, were unbelievable.

19                  The Appellant is a Nepalese citizen.  She lived in Japan as a student from April 2004 until July 2006.  On 18 August 2006, she left Nepal arriving in Australia on 20 August 2006.  The following month, on 18 September, she lodged an application for a protection visa.  That claim was based on her membership of a particular social group in Nepal.  She claimed that as an able bodied member of a family with an involvement in business and the Nepalese Congress Party and an overseas returnee, she would be subject to persecution by the Maoists in that country.  She claimed that her uncle had been abducted and that she had relocated to Kathmandu and then Japan.  Her application was refused by a delegate of the Minister on 16 December 2006.  She then sought the review of that decision by the Tribunal.

20                  The application which she subsequently made for the judicial review of the Tribunal’s decision by the Federal Magistrates Court was on grounds which are essentially replicated in the notice of appeal to this Court.  At para 12 of the reasons of the learned Federal Magistrate, the following statement appears:

A consideration of the Tribunal’s decision record in this case, indicates that it did what the applicant submitted it ought to have done, namely, give proper consideration to the reasons for delay. 

I interpolate that in that regard “delay” is a reference to a submission that had been made on behalf of the Appellant that although the Tribunal found that the appellant’s past travel and residency were inconsistent with a well founded fear of persecution for a convention reason it was not uncommon for applicants to delay fine visa applications or to leave their home country and to return there before coming to Australia.  The Federal Magistrate continued at para 12:

Under the heading, “Return to Nepal”.  The Tribunal sets out the factor which the Appellant had advanced in justifying her return to Nepal.  It said:

The Tribunal has considered each of these explanations, but finds them unconvincing. A particular concern is the stark contrast between the applicant’s claimed thought patterns at that time, and her present refugee claims. Specifically, the Tribunal does not find credible, and does not accept, that the applicant considered it a reasonable risk to return to Jhapa in mid-2006, despite her family’s claimed precarious situation, yet considers it unsafe to return anywhere in Nepal in mid-2007, notwithstanding a much improved security situation.

21                  The Federal Magistrate concluded in light of this passage and another which it sets out from the Tribunal’s Reasons at para 13 of the Federal Magistrates Court’s Reasons that the Tribunal had given proper consideration to the reasons for the Appellant sojourn in Nepal and consequent postponement of a claim for protection.

22                  Insofar as the notice of appeal asserts a failure to give sufficient “consideration”, that really amounts to a submission that, in some way, the Federal Magistrates Court should have embarked upon a consideration of the merits of their claim for a protection visa.  That is not the role entrusted to the Federal Magistrates Court on the hearing of a judicial review application.  The magistrate did not embark upon such a course.  There is no error in this. 

23                  So far as s 430 of the Migration Act is concerned, the learned Magistrate observed at para 19 as follows:

The Tribunal’s reasons also satisfy the requirements articulated by Tamberlin and RD Nicholson JJ in W148/00A’s case as well as those of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 (at 423 [67]).

24                  A regard to the reasons of the Tribunal, discloses that detailed consideration was given by the Tribunal to the claim that had been made by the Appellant in relation to extortion.  The reasons for the Tribunal’s decision are apparent.  There is no breach of s 430 of the Migration Act.  I respectfully agree with the conclusion reached by the Federal Magistrate in that regard.  Again, it must be emphasised that value judgments concerning the factual merits of this aspect of the claim made by the Appellant were for the Tribunal.  Those value judgments seem to me to have been reasonably open.

25                  What follows from what I have said is that the appeal proper would not enjoy, in my opinion, any reasonable prospect of success.  In those circumstances, even were I to be persuaded that the explanation for the Appellant’s absence on 4 March 2008 was compelling, I would not be disposed to set aside the order of dismissal.  It further follows that the application for the setting aside of that order must be dismissed.

Associate:

Dated:         14 May 2008