FEDERAL COURT OF AUSTRALIA

SZUFS v Minister for Immigration and Border Protection [2015] FCA 991

THE COURT ORDERS THAT:

1.    The name of the second respondent, “Refugee Review Tribunal”, be amended to “Administrative Appeals Tribunal”.

2.    The applicant’s application for an extension of time to seek leave to appeal is dismissed.

3.    The applicant is to pay the respondents’ costs of and incidental to the application.

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

REASONS FOR JUDGMENT

Introduction

1    The applicant has applied for an extension of time with respect to an application for leave to appeal a decision of a Judge of the Federal Circuit Court, delivered on 11 March 2015: see SZUFS v Minister for Immigration & Anor (No 2) [2015] FCCA 545 (SZUFS).

2    The applicant requires leave to appeal because the Federal Circuit Court orders in question were interlocutory in nature: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). On an application for leave to appeal, an applicant is required to establish that the decision in question is attended with sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused: see Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397 at 398–399 per Sheppard, Burchett and Heerey JJ; and Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [25].

3    Rule 35.13 of the Federal Court Rules 2011 (Cth) requires an application for leave to appeal from an interlocutory judgment or order to be filed within 14 days after the date on which the judgment was pronounced, or the order was made. Consequently, the applicant was required to file his application by 25 March 2015. Since his application was filed on 26 March 2015, one day out of time, he therefore requires an extension of time to file it.

4    However, in his submissions, the Minister accepted that the one day delay involved in filing the application for leave to appeal was short and that he had not suffered any prejudice by reason of that delay. Nonetheless, he submitted that the extension of time should be refused because the delay had not been adequately explained by the applicant and, more importantly, leave to appeal should not be granted because there was no merit in the applicant’s substantive appeal.

The grounds of this application

5    The applicant provided one ground for his application for an extension of time to seek leave to appeal. It was expressed as follows:

I was sick I could not attend the court on decition day

(Errors in original)

6    The applicant’s draft notice of appeal set out one proposed ground of appeal, as follows:

I could not attend the court for sickness.

7    Further particulars of these assertions are to be found in the applicant’s supporting affidavit. There, he stated that he did not attend the hearing on 11 March 2015 because he was “seeriously (sic) sick”. He claimed that he had been taking an anti-depression medication called Pristiq for a number of years and his supply of that medication had run out on 9 March 2015. He claimed this caused him to suffer serious side effects. Annexed to his affidavit were the following documents:

(a)    a copy of a prescription dated 18 October 2013, which states “ROSUVASTATIN…take ONE tablet at night for lowering cholesterol…”;

(b)    a copy of a medical certificate dated 11 March 2015, which states that the applicant “was found to be suffering from medical condition and will be unable to attend work from 11/03/2015 to 11/03/2015 inclusive”; and

(c)    an internet article headed “Pristiq Withdrawal Symptoms + Duration”.

8    It can be seen from the applicant’s affidavit that he purports to offer an explanation for his failure to attend the Federal Circuit Court hearing on 11 March 2015. As the Minister points out, no explanation has been offered for his delay, albeit only one day, in filing his application for leave to appeal. While this lack of an explanation for his delay presents an impediment to the success of an application such as this, it pales into insignificance when compared to the difficulties the applicant faces in his proposed substantive appeal. Before identifying what those difficulties are, it is appropriate to briefly outline the factual background to this matter and to then describe what happened in the proceedings before the Tribunal and the Federal Circuit Court.

The factual background

9    The factual background to the applicant’s claim is conveniently summarised in SZUFS in the following terms:

[23]    The applicant is a national of Bangladesh. He arrived in Australia on 15 April 2004 on a School Sector visa which expired on 29 April 2004. He was granted a further School Sector visa in 2004, followed by a Vocational Education and Training visa in 2005, which expired on 24 April 2006. Since then, the applicant has been granted a number of bridging visas.

[24]    On 15 October 2012, the applicant lodged an application for a protection visa. The protection claims contained in the application may be summarised as follows:

(a)    members of the Awami League attempted to kill his father who was a member of the Bangladesh National Party (BNP). In 1996, the Awami League destroyed his father's business. The applicant's family complained to the police however the police did nothing because of his father membership of the BNP.

(b)    in 1998, the applicant's family house was attacked by the Awami League and the applicant was stabbed.

(c)    in 2003, the Awami League attacked the applicant and his uncle in a restaurant. They were beaten and hot oil was thrown on them.

(d)    the applicant believes that if he goes back to Bangladesh, he will be harmed by his father's enemies, the Awami League, who believe that he will take his father's place in the BNP, and/or, that false charges will be laid against him by corrupt police who are influenced by the Awami League.

[25]    On 6 February 2013, the applicant attended a protection visa interview where he explained that his father was the BNP member for his village, Narainpur, but after problems with the Awami League which caused his father to close his business, they moved to Dhaka in 2001 or 2002. The applicant claimed that upon his father's death in 2005, he and his family did not face any serious problems from the Awami League.

[26]    On 22 March 2013, a delegate of the Minister refused to grant the applicant a protection visa.

[27]    On 19 April 2013, the applicant applied to the Tribunal for a review of the delegate's decision.

(Footnotes omitted)

The proceeding before the Tribunal

10    In January 2014, the Tribunal invited the applicant to attend a hearing before it on 14 March 2014 at 1.00 pm. On the morning of the scheduled hearing, the applicant contacted the Tribunal by telephone and stated that he had decided not to attend the hearing. He confirmed that he understood that the Tribunal would proceed to make a decision in his absence based on the material before it.

11    Consequently, the hearing did not proceed. Soon thereafter, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa.

The Tribunal’s decision

12    The Tribunal found that the applicant’s circumstances did not meet the criteria necessary for the grant of a protection visa. It observed that the mere fact a person claimed to have a fear of persecution for a particular reason did not establish either the genuineness of the asserted fear, or that it was “well-founded”, or that it was for the reason claimed. Similarly, the fact that an applicant claimed to face a real risk of significant harm did not establish that such a risk existed, or that the harm feared amounted to “significant harm”.

13    In considering the applicant’s specific claims, the Tribunal particularly noted that the applicant himself had never been involved in politics in Bangladesh, nor had he ever indicated that he wished to be. Further, it noted he had taken no interest in his father’s former position in politics. The Tribunal also referred to the lack of evidence before it to support the applicant’s claim the Awami League had any interest in him since his father’s death, much less show that it had an adverse interest in him. The Tribunal therefore concluded that it was:

… not satisfied on the evidence before [it] that there is anything more than a remote possibility that members of the Awami League would believe [the applicant] wants to or intends to take over from his father or would seriously harm [the applicant] for that reason.

The proceedings before the Federal Circuit Court

The application for judicial review

14    In April 2014, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The applicant relied on the following grounds of review:

1.    Tribunal has made error, s 36(2) that my fear is not real

2.    Tribunal has made error s 36(aa)

(Errors in original)

15    Under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), the applicant’s application was listed for a show cause hearing on 3 December 2014. However, that hearing could not proceed and, by letter dated 11 November 2014, the parties were informed the matter had instead been listed for a callover hearing on 30 January 2015. That letter was followed by an email dated 20 January 2015 reminding the parties of the new date.

16    The applicant failed to appear at the callover hearing on 30 January 2015. Accordingly, the applicant’s application for judicial review was dismissed under r 13.03C(1)(c) of the FCC Rules, based on his non-appearance: see SZUFS v Minister for Immigration & Anor [2015] FCCA 193. The orders were entered on 19 February 2015.

The reinstatement application

17    By application filed one week later, the applicant applied to set aside those orders, relying upon r 16.05(2)(a) of the FCC Rules. That rule provides that the Court may set aside a judgment or order that was made in the absence of a party. That application was listed for hearing on 11 March 2015. Again, the applicant failed to appear. After a short adjournment, during which several unsuccessful attempts were made to contact the applicant by mobile telephone, the Federal Circuit Court judge proceeded to deal with the application.

The decision dismissing the reinstatement application

18    Citing, among other authorities, the Full Court decision of Akpata v Minister for Immigration [2005] FCAFC 250 at [13], his Honour listed the considerations relevant to the exercise of his discretion to set aside an order made in the absence of a party as follows (see SZUFS at [14]):

(a)    whether there was an adequate reason for the non-appearance at the hearing;

(b)    whether there was any delay in making the application to set aside the order;

(c)    whether the party, in whose favour orders have been made, would be prejudiced by a new hearing, which prejudice could not be adequately compensated by a costs order, or by ordering security for costs; and

(d)    whether there was an arguable case on the merits in the substantive application.

19    As to the first consideration, the Federal Circuit Court observed that the applicant’s reason for his non-appearance was that he was “confused about the court date”: see SZUFS at [15]. His Honour concluded that this “is not an adequate reason … given the applicant was notified of the change in listing of the application by letter and email, with the applicant confirming receipt of the email in his affidavit”: see SZUFS at [16].

20    With regard to the second consideration, his Honour observed that the delay in making the application was 27 days, which was “not an insignificant delay”: see SZUFS at [17].

21    Next, as to the third consideration, his Honour observed (see SZUFS at [19]) that:

... [w]hilst there may not be any prejudice to the Minister, this is insufficient to warrant the setting aside of the orders in light of the lack of the applicant’s confirmation of his receipt of the email notification of the callover and the lack of adequate explanation for his non-appearance.

22    Finally, in relation to the fourth consideration, while his Honour noted that the applicant’s non-attendance at the hearing provided a sufficient basis by itself for the dismissal of his reinstatement application, because of the history of the matter, he considered it appropriate to proceed to deal with the merits of the applicant’s substantive application for judicial review: see SZUFS at [21]. The grounds of review are set out above (at [14]).

23    Following a consideration of the reasons given by the Tribunal, his Honour concluded the applicant’s substantive application had no merits, for the following reasons:

[36]    The applicant has raised no arguable case in his application. His grounds are mere assertions which do not reveal any error in the Tribunal's decision or processes.

[37]    Contrary to what appears is being asserted, the Tribunal considered the applicant's claims under both the Refugees Convention (s 36(2)(a)) and the complementary protection criteria (s 36(2)(aa)), however it was not satisfied that the applicant fulfilled either. The Tribunal was not obliged to accept any or all of the applicant's claims: Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-70 per Wilcox J. The Tribunal's findings were open on the limited evidence that was before it. In circumstances where the applicant expressly declined to attend the Tribunal hearing to elaborate on his claims, "the inevitable consequence was the rejection of his application: NAVX v Minister for Immigration [2004] FCAFC 287 at [5].

(Emphasis added)

Consideration

24    At the outset, it is well to recall that, putting aside the one day extension of time issue, the critical question in this application is not whether the applicant has a satisfactory explanation for his failure to attend the hearing on 11 March 2015, but whether the Federal Circuit Court judge made any error in dismissing his application to reinstate his application for judicial review on that date, following his earlier failure to attend the hearing on 30 January 2015. It follows that the attempts the applicant made in his affidavit (see at [7] above) and submissions to offer an explanation for his non-attendance on 11 March 2015 is misguided. Instead, the critical question in this application is that stated above.

25    On that question, the Federal Circuit Court judge approached the application before him at two levels. First, he considered whether there were sufficient grounds for him to reinstate the applicant’s application for judicial review. Secondly, while it was not strictly necessary to do so, he considered whether, in any event, there was any merit in the applicant’s substantive application for judicial review.

26    At the first level, his Honour made a discretionary decision on a matter of practice and procedure. The applicant therefore needs to show some error of principle in that decision and that the decision caused him a substantial injustice: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 and Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [20].

27    No such error of principle is present in his Honour’s decision. As appears at [18]–[22] above, his Honour identified the relevant considerations by reference to the apposite authorities and addressed each of those considerations in turn in deciding not to exercise his discretion to reinstate the applicant’s application.

28    The second consideration identified at [26] above goes to the merits of the applicant’s substantive application for judicial review which, in turn, coincides with the second level at which the Federal Circuit Court judge approached the task before him (see at [25] above). On that matter, his Honour characterised the applicant’s two grounds of review as unparticularised assertions for which he found no support in the Tribunal’s decision: see at [23] above. Importantly, his Honour noted the fundamental problem the applicant faced in attempting to attack the Tribunal’s decision when he had not accepted its invitation to attend a hearing to address the concerns it had with his application: see the emphasised part of [37] of SZUFS at [23] above. Again, no error is apparent in this reasoning.

29    Since the Federal Circuit Court judge made no error at either level of his approach to the application before him, it would be futile to grant the applicant his application for leave to appeal his Honour’s decision to refuse to reinstate the applicant’s substantive application for judicial review. That is to say, quite apart from the absence of any explanation for his one day delay in making this application, the applicant’s challenge to the Federal Circuit Court judge’s decision on the matter of practice and procedure has no merit and, moreover, his challenge to his Honour’s decision on his substantive application also has no merit. It therefore necessarily follows that the applicant has failed to establish that the decision caused him a substantial injustice.

30    The applicant’s application for an extension of time to make an application for leave to appeal must therefore be dismissed with costs.

Associate:

Dated:    9 September 2015