FEDERAL COURT OF AUSTRALIA

SZTGS v Minister for Immigration and Border Protection [2014] FCA 551

THE COURT ORDERS THAT:

1.    The application be adjourned to a date to be fixed.

2.    Costs reserved.

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

REASONS FOR JUDGMENT

1    On 19 February 2014, for reasons which were then given ex tempore, the Federal Circuit Court dismissed an application by the present applicant for the judicial review of a decision of the Refugee Review Tribunal made on 16 August 2013. The dismissal was made on the basis that the applicant did not have an arguable case in terms of r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). In other words, the judicial review application was dismissed summarily rather than after a hearing on the merits.

2    The applicant was disposed to challenge the order of dismissal. A consequence of the manner in which the judicial review application was dismissed was that that challenge had to take the form of an application for leave to appeal. That is because the order of dismissal was, in the circumstances, an interlocutory order. When the application for leave to appeal was called on at the appointed time this afternoon, there was no appearance by or on behalf of the applicant. That, in turn, enlivened an application on behalf of the Minister for Immigration and Border Protection (Minister) who is the first respondent to the application for the dismissal of the application on the basis of a failure, on the part of the applicant, to attend.

3    The court file discloses that a notice dated 16 April 2014 was sent both to the applicant and the Minister giving notice of the listing of the application at 2.15 pm this afternoon. The address employed, so far as the applicant was concerned, in the Court’s notice is one and the same as the address for service specified in his application for leave to appeal. There is nothing on the court file which would in any way indicate that that listing notice was returned undelivered.

4    Separately, and as a matter of prudent practice, the solicitors for the Minister also directed correspondence on two occasions, letters of 24 and 30 April 2014 respectively, to the applicant at that same address for service highlighting the time, date and place of hearing and also foreshadowing that, in the absence of an appearance, an application for the dismissal of the proceeding would be made. Those letters have become exhibit 1. There is then a basis established for the summary dismissal of the application for leave to appeal.

5    The Minister, upon reflection, sought that in any event the court should dismiss the application on the merits. That alternative course is one which is open to a respondent in respect of an application for leave to appeal where an applicant fails to attend. The respondent is entitled to request that the application for leave nonetheless be heard on its merits.

6    Having heard the Minister’s submissions, considered their merits and delivered, ex tempore, reasons for judgment, it came to my attention, immediately upon the pronouncing, orally, of an order for dismissal with costs of the application for leave to appeal, that the applicant was, in fact, in the building. It transpired that he had attended at the wrong court room at 2 pm, possibly, it seems, because of a listing error on the electronic notice boards in the ground floor foyer. Eventually, he made his way to the registry. The registry is not on the same level of the Law Courts building as the court room where the appeal was listed to be heard. From the registry, finally, he was directed here. Unsurprisingly, in those circumstances, when the court officer at my direction called the case for hearing at 2.15 pm, the applicant was not on this level.

7    It is patent to me on observing the applicant and trying to converse with him that he has only a limited understanding of English. The interpreter attended at the appointed time. After some 15 minutes following the calling without appearance of the applicant, I excused the interpreter.

8    The Minister’s application that the hearing on the merits of the appeal proceed and my entertaining that application were each based on what has proved to be a false premise. There is no fault on the part of the Minister in making the application. It was only natural. It is just that, as I have said, the premise was false. The applicant had appeared at what he thought was the correct courtroom. The difficulties faced by a person who is not fluent in English in respect of an engagement with the judicial system should not be under-estimated.

9    I am quite certain that the case is one which needs to be re-opened and that the orders pronounced orally should be vacated. They have not been entered.

10    The applicant’s command of English is so limited that I do not consider that it would be possible for him to make such submissions as he would wish without the benefit of an interpreter. It is not possible for that now to be done today. Instead, and, on reflection, this is a course which commends itself also to the Minister, the case is one where the appropriate order is to adjourn the application to a date to be fixed and to reserve costs. I make orders in those terms.

Associate:

Dated:    2 June 2014