FEDERAL COURT OF AUSTRALIA

SZMIU v Minister for Immigration and Citizenship [2012] FCA 179

THE COURT ORDERS THAT:

1.    The application for an extension of the time within which to appeal or to seek leave to appeal be dismissed.

2.    The applicant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    This proceeding is an application for extension of time for the applicant to seek leave to appeal from the judgment of the Federal Magistrates Court (SZMIU v Minister for Immigration and Anor [2011] FMCA 1473).

2    The applicant is a citizen of China who arrived in Australia on 28 November 2007. He left China legally and travelled on a passport issued in his name. On 4 December 2007 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Department refused the application on 3 January 2008. The applicant applied to the Refugee Review Tribunal which affirmed the decision of the delegate to refuse a protection visa. The applicant then applied to the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. The Federal Magistrates Court dismissed the application.

3    The task of the Federal Magistrates Court in dealing with the judicial review application brought by the applicant was restricted to a determination as to whether the Tribunal’s decision was affected by jurisdictional error: see s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990)170 CLR 1 at 35 per Brennan J.

4    If time to appeal is extended, this Court’s task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

Procedural history

Application to Refugee Review Tribunal

5    On 5 February 2008 the applicant applied to the Tribunal for a review of the delegate’s decision. In his statement in support of the application he claimed that he began practising Falun Gong in 2005, and that from October 2006 the local police in his province of Henan knew this. He claimed that in September 2007 he was formally warned by “local security” in relation to his Falun Gong practice and told he would be arrested and lose his business if he continued to practice Falun Gong. He said that he travelled to Australia shortly afterwards so that he would be in a better environment to continue to practise Falun Gong.

6    On 27 February 2008 the Tribunal wrote to the applicant advising that it had considered the material before it, but would be unable to make a favourable decision on that material alone. It invited him to provide oral evidence to it at a hearing scheduled for 17 April 2008. On 3 April 2008 the applicant sent a change of his contact details to the Tribunal. On 4 April 2008 the Tribunal sent the applicant a copy of its letter of 27 February 2008 by registered post to his new address.

7    The letter advising of the hearing date informed the applicant that in the event he failed to attend the scheduled hearing, and a postponement was not granted, the Tribunal may make a decision on his application without further notice. Neither of the letters sent on 27 February 2008 or 4 April 2008 were returned to the Tribunal.

8    The applicant did not appear before the Tribunal on 17 April 2008. The Tribunal dismissed his application for a protection visa in a decision dated 18 April 2008.

9    The Tribunal also stated in its reasons that it was not satisfied on the evidence before it that the applicant practiced Falun Gong as he claimed or that he was a genuine Falun Gong practitioner. It was not satisfied that he could not or would not return to China because of a fear of persecution for the reasons he claimed. The Tribunal was not satisfied on the evidence before it that there was a real chance the applicant would face serious harm for the purposes of the Refugees Convention either now or in the reasonably foreseeable future, if he returned to China. For those reasons the Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention.

Application to the Federal Magistrates Court in 2008

10    On 4 June 2008 the applicant filed an application in the Federal Magistrates Court seeking a review of the Tribunal’s decision, together with an affidavit in support (“the 2008 application”).

11    The grounds for review in the application provided, without alteration:

1.     I am a Chinese citizen and I am a genuine Falun Gong member. I have been practicing for years and I have been warned by my local security and company to be put in prison if I continue this activity.

2.     I can not stop practicing Falungong since it has helped a lot with my health condition. I can not go back to China since I am very scared to be sentenced.

3.     I have been actively practicing Falungong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.

12    The application was listed the hearing before the Federal Magistrates Court on 20 October 2008. The applicant did not appear at the hearing. The Federal Magistrates Court summarily dismissed the application under r 13.03A(c) of the Federal Magistrates Court Rules 2001.

13    During the hearing, the Minister tendered a letter dated 10 October 2008 to the applicant reminding him of the hearing date. The Court noted that no message had been received from the applicant, or from anyone on his behalf, indicating that he had been hindered, delayed or prevented from attending Court due to illness, injury or other emergency.

Application to the Federal Magistrates Court in 2011

14    On 4 August 2011 the applicant filed a further application in the Federal Magistrates Court (“the 2011 application”). In this application he sought to set aside the dismissal of his 2008 application almost three years earlier. He sought to review the decision of the Tribunal, on grounds that the Tribunal had denied him procedural fairness, that it appeared to be biased, and that it had denied him natural justice.

15    The applicant appears to have relied on r 16.05(2) of the Federal Magistrates Court Rules 2007, which provides:

The Court may vary of set aside its judgment or order after it has been entered if:

(a)    the order is made in the absence of a party.

16    In his supporting affidavit the applicant deposed that he did not attend the hearing of the 2008 application because he mistakenly thought the hearing date was 30 October 2008. He sought to explain his great delay in applying to set aside the orders made by deposing that, after missing the hearing, he did not realise that he had any right to appeal until a friend told him otherwise sometime in July 2011.

17    The 2011 application came before the Federal Magistrates Court on 1 September 2011. The Court found that the applicant had failed to satisfactorily explain his delay of nearly three years in seeking to set aside the previous orders. The Federal Magistrates Court also found that the applicant’s claims of bias, denial of natural justice, and denial of procedural fairness by the Tribunal were not established.

18    On 1 September 2011 the Court dismissed the 2011 application.

Application to the Federal Court

19    On 23 September 2011, the applicant filed an application for leave to file and serve out of time an appeal against the judgment of the Federal Magistrates Court of 20 October 2008 - seeking an extension of time for leave to appeal. The application was accompanied by a draft Notice of Appeal and an affidavit by the applicant in support. None of these documents made any reference to the 2011 application to the Federal Magistrates Court, or the orders made dismissing that application.

20    In his supporting affidavit the applicant deposed, without alteration:

1.    I apply for extension of time to file and serve notice of appeal because I do not know I should appeal in 21 days after my case was dismissed by the Federal Magistrate Scarlett.

2.     I believe that the Refugee Review Tribunal denied me procedural fairness and natural justice.

The applicant’s nonappearance before the Federal court

21    The application stated:

The Court will hear this application at that time and place stated below. If you or your lawyer do not attend then the Court may make orders in your absence.

It stated that the time and date the hearing would be advised to the applicant by the registry.

22    The hearing before the Federal Court was then scheduled for 13 February 2012 at 2:15 pm. The applicant was so advised by letter dated 23 November 2011 from the National Appeals Registrar addressed to him at both the residential and postal addresses he supplied to the Court. The Court file indicates that this letter was not returned. There is also no indication on the Court file that the registry was contacted by the applicant seeking an adjournment or advising of any difficulty in attendance on the date fixed.

23    The Minister tendered a letter dated 12 January 2012 sent by his lawyers to the applicant by express post reminding him of the hearing date of 13 February 2012. The letter advised that the Minister would be seeking dismissal of the proceedings and costs orders in the event of the applicant’s non attendance. The Minister advised the Court that his letter had not been returned.

24    The matter came on for hearing as scheduled on 13 February 2012 at 2.15 pm. There was no appearance by the applicant when the matter was called for hearing inside and outside the Court using the acronym SZMIU, or when the applicant was called by name outside the Court. In the period between the hearing and delivery of this judgment my chambers have not been contacted by the applicant seeking to explain or justify his non-appearance.

Does the applicant require leave to appeal?

25    It is apparent from the first paragraph of the applicant’s affidavit that he may have been confused as to whether he was bringing an application for leave to appeal with an accompanying extension application, or just an application for extension of time within which to file an appeal.

26    Rule 36.03 of the Federal Court Rules requires that a notice of appeal must be filed within 21 days at either the date the judgment appealed from was pronounced or leave was granted.

27    I consider that the applicant requires leave to appeal the decision of 20 October 2008 and also requires an extension of time in which to apply for leave. The Federal Magistrates Court summarily dismissed the application before it on 20 October 2008 pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001, because of the applicant’s non appearance. An order under this rule involved an exercise of the Federal Magistrates Court’s discretionary powers and was interlocutory in nature: MZXAU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1558 at [13].

28    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that the applicant therefore requires leave to bring the appeal.

29    Although the position is not clear, I consider that the applicant has 21 days in which to seek leave to appeal: SZDGN at [9]. The Federal Magistrates Court decision was made in June 2008. The applicant’s application for leave to appeal is more than 3 years late.

30    However, little turns on whether this is properly an application for an extension of time to apply for leave to appeal or an application for an extension of time to appeal. There is a substantial overlap of issues for consideration. These include whether there is an adequate explanation for the delay and whether the proposed appeal has merit. Accordingly I deal with both the application for an extension of time to appeal and the application for leave to appeal together below.

31    I also note that, as the application to the Federal Court does not deal with the decision of the Federal Magistrates Court of 1 September 2011, it is not necessary for me to determine whether that decision was also interlocutory in nature. However, I strongly suspect it was: see SZDGN at [3]-[6]. Were I required to determine an application for leave to appeal from that decision, on the state of the materials before me, I would make findings in similar terms.

The application for dismissal for non-appearance

32    In reliance on the non-appearance of the applicant, the Minister applies to dismiss the application pursuant to Part 35 of the Federal Court Rules- which relates to Leave to Appeal. Rule 35.33 relevantly provides:

(1)    If a party is absent when an application under rule 35.12 or rule 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

(i)    the application be dismissed;

…

Rule 35.12 relates to applications for leave to appeal. Rule 35.14 relates to applications for an extension of time within which to seek leave to appeal.

33    If the applicant does not require leave, then the appropriate rule for the Minister to rely on is r 36.75. The provisions are very similar. Rule 36.75 relevantly provides:

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed;

…

34    Nothing turns on the question as to which rule is appropriate to rely on in seeking dismissal of the application because of the applicant’s non-appearance. Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (“FCA”) enables such a dismissal. It relevantly provides:

A single Judge (sitting in Chambers or in open court) or a Full Court may:

(bb)    make an order that an appeal to the Court be dismissed for:

(i)     …

        (ii)     failure of the appellant to attend a hearing relating to the appeal.

The failure of the applicant to attend the hearing in this matter is a failure of an appellant to attend a hearing relating to the appeal within the meaning of s 25(2B)(bb)(ii).

35    In the circumstances of the applicant’s non-appearance I dismiss the application pursuant to s 25(2B)(bb)(ii) of the FCA. In reaching this determination I have had regard to s 37M of the FCA which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. To adjourn the matter because of the applicant’s non-appearance would not have met the requirements of s 37M, even more so when the matter is an appeal against the finding of another court. The finality of court decisions is an important aim of the judicial system.

36    This summary dismissal because of the applicant’s non-appearance is even more appropriate in circumstances where he failed to appear:

(a)    before the Tribunal on 17 April 2008;

(b)    before the Federal Magistrates Court on 20 October 2008; and

(c)    before this Court on 13 February 2011.

The applicant applied to the Tribunal to review the delegate’s decision to deny him a protection visa, sought to overturn the Tribunal’s decision in the Federal Magistrates Court, and sought to appeal the decision of that Court in the Federal Court, yet did not properly prosecute any of them. As a result there has been substantial delay in finalising the question as to the applicant’s entitlement to a protection visa. Any further delay must be minimised.

Prospects of SUCCESS OF THE application for leave to appeal and APPLICATION FOR AN extension of time

37    I am fortified in my decision to summarily dismiss the application as, having considered the documents filed, in my view both the application for leave to appeal and the application for an extension of time had no reasonable prospects of success in any event.

38    In order to succeed in an application for leave to appeal the applicant is required to show that the decision appealed from is attended by sufficient doubt to warrant its reconsideration on appeal, and that substantial injustice would result if leave were refused, supposing the decision to be wrong: MZXAU at [13]; Decor Corporation v Dart Industries Inc (1991) 33 FCR 397. However, if the appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, the application for leave to appeal should not be granted.

Insufficient doubt in dismissal decision to warrant reconsideration

39    The decision of the Federal Magistrates Court of 20 October 2008 discloses no error in the exercise of the discretion conferred by r 13.03A(c) of the Federal Magistrates Court Rules 2001. The applicant failed to attend the hearing before the Court, having previously failed to attend the hearing before the Tribunal. In my view there is nothing in the decision of the Federal Magistrates Court which indicates that it erred in the exercise of its discretion to dismiss the application for nonappearance.

40    I also note that in the 2011 application the applicant put his case that the Federal Magistrates Court erred in deciding to summarily dismiss the application in 2008 because of his non-appearance. I can see no error in the Federal Magistrates Court’s consideration of the applicant’s submissions during the hearing of the 2011 application. The learned Federal Magistrate considered the applicant’s explanation for his non-appearance and found his explanation insufficient in the circumstances.

No arguable grounds of appeal

41    It is established that leave to appeal, and any extension of time within which to apply for leave, should be refused if the appeal is bound to fail.

42    The proposed Grounds of Appeal in the draft Notice of Appeal state, without alteration:

1.     In making of the decision, the Refugee Review Tribunal denied the applicant procedural fairness.

2.     The Refugee Review Tribunal appeared to be biased.

For the reasons that I set out below, in my view these proposed Grounds of Appeal have no merit.

The claim of denial of procedural fairness by the Tribunal

43    This proposed ground of appeal is not particularised, and the affidavit in support does not provide any further information to assist with understanding the basis upon which it is put. What is clear is that the applicant did not attend the Tribunal in response to its invitation to him to give oral evidence. He did not accept the Tribunal’s invitation even though it had previously advised him in writing that it would be unable to determine the application in his favour on the basis of the information he had submitted to that point. In these circumstances it cannot be described as a denial of procedural fairness for the Tribunal to have decided as it did that it could not be satisfied that he practised Falun Gong as he claimed, that he was a genuine Falun Gong practitioner, and that he faced a real chance of serious harm if he returned to China. The applicant has no reasonable prospect of establishing that he was denied procedural fairness by the Tribunal.

The claim of bias by the Tribunal

44    This proposed ground of appeal is again not particularised, and the other materials filed provide no information as to the basis upon which it is put. Allegations of bias are serious, going as they do to the very core of the integrity of the decision maker, and therefore require evidence in order to be established: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872. In circumstances in which the applicant did not attend the Tribunal hearing, and where I consider the Tribunal decision does not disclose any bias on its face, he does not have any reasonable prospect of establishing bias.

Substantial injustice

45    I am prepared to assume that if the decision of the Federal Magistrates Court of 20 October 2008 is wrong, the applicant suffers a substantial injustice in having his application for review struck out. However the countervailing considerations are such that I still consider that the application for leave to appeal has no reasonable prospect of success.

Explanation for the delay

46    Before the application for leave to appeal can be considered, the applicant must provide the Court with a satisfactory explanation for his three year delay in seeking leave. It is well established that the Court has a flexible discretion to extend time, but an extension of the magnitude sought would require a persuasive explanation. In referring to the discretion relating to extension of time for filing an appeal, the Full Court held in Jess v Scott at 195 that:

It should not be overlooked that r 15(2) enables leave to be given "at any time", the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally, it may be said, something much less significant might justify leave where a party is a few days late.

This finding is equally apposite to an application for extension of time for leave to appeal.

47    The applicant’s affidavit in support of the application for extension of time was sworn on 4 August 2011. In it he deposes, without alteration:

1.    I apply for extension of time to file and serve a notice of appeal because I do not know I should appeal in 21 days after my case was dismissed by the Federal Magistrates Scarlett.

48    The affidavit does not disclose any explanation for the applicant’s gross delay except in stating that he was unaware of the time limits. Further, the applicant does not explain the delay between swearing his affidavit on 4 August 2011 and filing the application on 23 September 2011. He did not appear before me, either personally or by a representative, to provide any further explanation for his delay.

49    It is established that an absence of knowledge of the relevant time limits is not a sufficient explanation for delay in filing proceedings out of time: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [5] to [6]. In my view, the applicant has utterly failed to provide an acceptable explanation for his delay in seeking to appeal the decision of the 20 October 2008.

50    For these reasons, I consider that the application for leave to appeal, and the application for an extension of time within which to do so, were both bound to fail in any event.

Jurisdiction

51    It may seriously be doubted whether this Court has jurisdiction to entertain an appeal seeking to set aside an order of dismissal made by the Federal Magistrates Court for non-appearance: see Brown v Fraser (1896) 22 VLR 22; Crotty v Clarke (1896) 22 VLR 594; Adams v Cronin (Unreported, Supreme Court of Victoria - Court of Appeal, 6 September 1996); VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505 at [10] and other cases there cited. Notwithstanding the doubt I have as to jurisdiction, because the applicant is a litigant in person, I have taken the same course as that adopted by Sundberg J in VOAQ of considering the merits of the application.

Res judicata and issue estoppel

52    The Minister also submits that by the applicant’s 2011 application to the Federal Magistrates Court he has already litigated an application to set aside the summary dismissal of 20 October 2008. The Minister submits that the applicant is now barred by issue estoppel and res judicata from making that application again. While there is some force to this argument, it is unnecessary for me to determine it as the application has been dismissed on other grounds.

Conclusion

53    For the reasons I set out above, I dismiss the application for an extension of time within which to appeal, or within which to seek leave to appeal, whichever the application be. I order the applicant to pay the party-party costs of the Minister.

Associate:

Dated:    2 March 2012