FEDERAL COURT OF AUSTRALIA

SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210

THE COURT ORDERS THAT:

1.    The title of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The application for extension of time and leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    This is an application for an extension of time and leave to appeal against a judgment of Judge Nicholls of the Federal Circuit Court of Australia handed down on 5 July 2013: SZSPR v Minister for Immigration [2013] FCCA 941 (SZSPR). The primary judge dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (Tribunal) under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

2    The decision record of the Tribunal indicates that the applicant is a citizen of the People’s Republic of China born in 1981. He departed China legally on 31 October 2011 on a passport in his own name issued in March 2011. He arrived in Australia on the same day as he departed China on a student visa which had been issued on 6 October 2011. On 17 January 2012 the applicant applied for a Protection (Class XA) visa (protection visa). On 1 June 2012 a delegate of the first respondent (Minister) refused the application and notified the applicant on 5 June 2012. The Tribunal affirmed the delegate’s decision on 29 January 2013.

claims

3    The applicant claimed that he had owned a chemical company in Hebei province worth about five million yuan which had been targeted by corrupt government officials. He alleged that in early October 2011 two people from the Town Demolition and Relocation Office visited him at the factory and told him that the land would be expropriated to accommodate a joint venture with a Taiwanese company. They offered him 600,000 yuan compensation, which the applicant refused because he deemed the compensation to be too small. As a result, the applicant claimed to fear harm from local government officials and “thugs” who physically harmed and threatened him. The applicant says he went to Beijing a few days later with his passport and money. In Beijing he asked a travel agent to help him with his Australian visa application. He said he had to pay 90,000 yuan as a service fee when the visa was issued. He had to borrow money from family and friends and he did not have enough until 30 October when he bought the plane ticket. While in Beijing he heard that the factory had been demolished.

the tribunal’s decision

4    The Tribunal found that the applicant was not a witness of truth. It found many inconsistencies between his visa application and departmental records identifying when he had applied to come to Australia as a student, the arrangements he had made with travel agents to come to Australia, evidence regarding his treatment by authorities, and evidence regarding the existence of his company. The Tribunal found at [139] of its decision record:

On the basis of the applicant’s lack of credibility, for the reasons explained above, the Tribunal rejects the applicant’s claims that he owned his own company in China which was subject to a request for acquisition by the Chinese authorities, that the applicant was offered compensation for the company/land which he refused and which led to him being harmed, threatened and/or detained, and led to him and his wife attempting to appeal and being harassed for that reason. The Tribunal does not accept that the authorities have, or have had, any interest in the applicant for the reasons claimed.

the federal circuit court’s decision

5    On 25 February 2013, the appellant filed an application raising the following grounds for review of the Tribunal’s decision (errors in original):

1.    I refused the Chinese authorities compensation for my company which led to me being harmed and threatened.

2.    The Refugee review Tribunal member failed considering all my claim and evidence.

3.    The Refugee Review Tribunal made jurisdictional error while make his decision.

6    When the application first came before the Federal Circuit Court, the applicant appeared in person assisted by an interpreter. The applicant was put on notice that if his application remained in the bare, unparticularised form in which it was made, the Minister may seek dismissal of the application and he was referred to a lawyer in the Federal Circuit Court’s “RRT Legal Advice Scheme”: SZSPR at [4]-[7].

7    The scheduled time of the next court date (a mention) on 5 July 2013 was changed from 10.15 am to 2.15 pm due to the unavailability of the courtroom. This was communicated to the parties, but the applicant did not appear. The Minister applied for the application to be dismissed under r 13.03C(1)(c) of the FCC Rules in light of the applicant’s non-appearance. The rule relevantly provides:

Default of appearance of a party

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

…

(c)    if the absent party is an applicant – dismiss the application; …

8    The primary judge thought that the time change was of no consequence because a medical certificate was sent to the Court dated 3 July 2013. It merely certified that the applicant was suffering from a “medical condition” which made him unfit for “duty” from 4 July to 5 July inclusive. No request was made by the applicant for an adjournment. The primary judge did not regard this as a satisfactory explanation as the certificate provided no basis for the Court to be satisfied that the applicant was unfit to participate in the proceedings and the applicant had not sought to participate in any other way but the applicant was on notice of the mention as evidenced by the medical certificate. The primary judge relied on NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. See SZSPR at [8]-[16] and [23].

9    The application was dismissed under r 13.03C(1)(c); the primary judge relied on the failure of the applicant to attend the hearing without satisfactory explanation: SZSPR at [24], and the bare grounds of the application were such that they weighed in favour of the matter proceeding to finality: SZSPR at [17]. The primary judge dealt with the grounds of appeal in a summary way at [19]-[22]. His Honour observed that the first ground was a bare assertion of fact and did not establish jurisdictional error. His Honour said that the second ground lacked particularity and “cannot be viewed as anything other than a complaint that the Tribunal did not accept the applicant’s claims” (at [20]). The last ground was similarly a bare assertion of jurisdictional error and meaningless without particularity (at [22]).

the leave application

10    The applicant filed the application to this Court for extension of time and leave to appeal on 1 August 2013. It bears the date of 31 July 2013. The grounds of the application are (errors in the original):

1.    I refused the Chinese authorities’ compensation for my company which led me being harmed and threatened.

2.    The Refugee Trivew Tribunal member failed to consider my claims and evidence.

3.    The Refugee Review Tribunal made jurisdictional error while making decision.

4.    The Federal Magistrate Court dismissed my application.

11    The applicant also filed on 1 August 2013 an affidavit bearing the date 18 July 2013. The affidavit noted only that the applicant sought leave to appeal and attached the draft notice of appeal which also bore the date of 18 July 2013. The applicant appeared at the hearing of the leave application with the assistance of an interpreter. He explained that the delay of 13 days in filing the application for leave to appeal on the basis that he had attempted to file a notice of appeal on 18 July 2013 (which would have been within time) but the Court Registry would not accept it and he had had difficulty in understanding the process.

12    The draft notice of appeal set out the following grounds (errors in original):

I established my own chemical factory in 2001. The local officials wanted to usurp my property with mean trick to persecuting of me. I had to leave my family for Australia to apply Protection visa.

The Tribunal officer didn’t accept my claims ans evidence. He made jurisdictional error while making his decision of refusal of my application.

The Judge Nicholls of Federal Magistrate Court affirmed the Tribunal officer’s decision.

13    The Minister’s representative provided a bundle of documents which included the Tribunal decision record, the sealed order of and reasons for judgment in SZSPR (Bundle) and written submissions. The applicant provided no written submissions or evidence other than the affidavit at [11] above to support his application.

14    The Minister’s written submissions pointed out that by means of a letter from the Minister’s representative dated 8 August 2013, the applicant had been informed that it was more appropriate for him to make an application to the Federal Circuit Court pursuant to r 16.05(2)(a) of the FCC Rules than to proceed with the leave application. In submissions at the hearing, the Minister’s representative noted that there was no time limit for applications under that rule. Rule 16.05(2) relevantly provides:

16.05  Setting aside

…

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

(a)    the order is made in the absence of a party; or

…

(c)        the order is interlocutory; or

…

Consideration

15    The order made by the Federal Circuit Judge under r 13.03C(1)(c) is interlocutory in nature and therefore leave to appeal is required: see Singh v Minister for Immigration and Citizenship [2013] FCA 199 (Singh No 1) at [23] per Mansfield J; NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406 at [4].

16    The principles relevant to applications for extension of time are well established: the relevant considerations are the length of delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[17] and SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16]. In SZNYE at [8], Katzmann J noted that laypersons are generally not aware of the Court’s timeframes so that it cannot generally be an excuse. In this case, it is clear that the applicant has made genuine efforts to appeal the Federal Circuit Court’s judgment within time. The representative of the Minister accepted that there was no prejudice in this case if the Court decides to grant leave.

17    The principles relevant to when the Court should grant leave to appeal are also well established: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: as a general proposition, the leave should not be granted unless the decision sought to be appealed from is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused.

18    No evidence over and above the Bundle and the affidavit at [11] has been provided. The grounds for both the extension application and the leave to appeal seek to agitate the applicant’s desire to have reviewed the decision of the Tribunal and they are materially the same as the grounds raised in the application to the Federal Circuit Court. However, the consideration of these grounds was not central to the decision of the primary judge in SZSPR and accordingly the appeal for which leave is sought does not put in issue the reason for the primary judge’s decision. Insofar as he considered the substance of the applicant’s claims it was only in a very cursory way and ancillary to the decision whether there were grounds for dismissing the application under r 13.03C(1)(c) so that the substantive application was not determined: this rationale is consistent with the remarks in Sahib v Minister for Immigration and Citizenship (No 2) [2011] FCA 399 (Sahib (No 2)) at [15] per Gray J.

19    From my reading of the Tribunal’s decision record, I consider that an appeal on the grounds proposed by the applicant is not likely to be successful for reasons summarised by the primary judge at [19]-[22] of SZSPR. Having said that, the appropriate place for the substantive merits of the application for judicial review of the Tribunal’s decision to occur in the first instance is the Federal Circuit Court in view of s 476(1) the Migration Act 1958 (Cth), not in this Court indirectly by virtue of an appeal from the dismissal of an application for non-attendance under r 13.03C(1)(c): Sahib (No 2) at [16]-17] per Gray J.

20    In Sahib v Minister for Immigration and Citizenship [2010] FCA 944 at [5]-[7], North J addressed an analogous situation to the one currently under consideration and said:

[5]    … The federal magistrate committed no error by dismissing the application in default of appearance by the applicant. Any appeal against that order would be bound to fail. Consequently, the grant of leave to appeal would be futile. It is appropriate to dismiss the application on the basis that it is meant to be an application for leave to appeal. The same result would, however, follow if the matter were treated as an appeal.

[6]    The applicant explained his reasons for not appearing before the Federal Magistrates Court. He is entitled in the circumstances of this case to seek to set aside the dismissal of his case by the federal magistrate (see r 16.05(2)(a) of the Federal Magistrates Court Rules). Where the applicant had a good reason for not attending the hearing would be a relevant on an application made under that rule.

[7]    The proper course for the applicant was to apply to the Federal Magistrates Court to set aside the order dismissing his application. He was alerted to this course by the written submissions of the first respondent which were served on him several days before the hearing …

21    The failure to make an application under r 16.05(2)(a) or (c) of the FCC Rules is a relevant consideration in favour of dismissing an application for leave to appeal: see Singh No 1 at [35] per Mansfield J; SZOBU v Minister for Immigration and Citizenship [2010] FCA 568.

22    For all of these reasons I dismiss the application for extension of time and leave to appeal and order that the applicant pay the first respondent’s costs as agreed or assessed. I also order that the title of the first respondent be amended to “Minister for Immigration and Border Protection”.

Associate:

Dated:    21 November 2013