FEDERAL COURT OF AUSTRALIA

SZVXC v Minister for Immigration and Border Protection [2015] FCA 1041

THE COURT ORDERS THAT:

1.    The applicant have leave to appeal the judgment dated 17 September 2015 of the Federal Circuit Court of Australia.

2.    Within 10 days, the applicant is to file and serve a notice of appeal in the form of the draft notice of appeal dated 18 September 2015.

3.    The Minister by himself or by his Department, officers, agents or delegates is restrained from removing the applicant from Australia until the applicant’s appeal is heard and determined or until further order.

THE COURT NOTES:

1.    Directions will be made in due course regarding the preparation and conduct of the appeal.

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

REASONS FOR JUDGMENT

1    This matter has come before me on an urgent basis as the duty judge. The applicant has filed two interlocutory applications. The first is an interlocutory application for leave to appeal against a judgment of the Federal Circuit Court of Australia (FCCA) given on 17 September 2015.

2    The grounds of the applicant’s application for leave to appeal are:

1.    Despite being begged for the mental and legal support of my McKenzie friend, the Court below deprived me of basic natural justice;

2.    The “Applicant’s Interlocutory Submission” before the court below shows how severely that Court prejudiced the Appeallant’s (sic) right to justice.

3    The other interlocutory application seeks an interim injunction restraining the Minister by himself or by his Department, officers, agents or delegates from removing the applicant from Australia until his proposed appeal is finalised. I was told arrangements had been made to remove the applicant on a flight from Australia leaving Sydney at about 9.00 pm tonight.

4    The applicant has provided a draft notice of appeal. The draft notice of appeal is from the whole of the judgment and orders 1 and 2 of the FCCA given on 17 September 2015.

5    The proposed grounds of appeal are that:

(a)    the applicant was denied procedural fairness;

(b)    the FCCA did not take into consideration “many relevant consideration (sic) and laws”;

(c)    the FCCA erred in failing to find “many facts and the totality of the case”; and

(d)    the FCCA did not take into consideration the public interest.

6    The applicant also filed in support of his two interlocutory applications an affidavit sworn by him today. Annexed to that affidavit was an earlier affidavit by the applicant which was apparently relied upon by him in the FCCA. Included in the materials in the attachments to his affidavit is a document dated 16 September 2015 entitled “Applicant’s Interlocutory Submissions”, which the applicant handed up in the FCCA. Its text is as follows:

PREJUDICE TO ME

1.    I did not expect this Court and/or the Minister to deny me natural justice.

2.    My friend (SZSSJ) requested Ms Ranya Krishnan on behalf of me to arrange transport for him to my hearing today but she declined.

3.    Hence, I have been denied mental and legal support today.

4.    I submit that it has been and will be a severe prejudice to me if the court give an adverse judgment to me today while denying natural justice.

DOCUMENTS

5.    I barely have any documents in my possession that are crucial to my case.

6.    My friend is going to help me to retrieve those documents (including legal documents) from difference sources which we suppose might take two to three months.

ORDERS SOUGHT

7.    Please adjourn the court and allow me enough time to obtain documents and legal assistance.

8.    Please issue an interlocutory injunction restraining the Minister, by himself or by his Department, officers, servants, delegates or agents, from removing me from Australia until those proceedings are finalised.

(Emphasis added).

7    It is significant for current purposes to note that this document discloses that the applicant sought an order from the FCCA that the hearing on 17 September 2015 be adjourned so that he be permitted to have “enough time to obtain documents and legal assistance”.

8    The applicant appeared before me today by videolink from Villawood Detention Centre. He was assisted by an interpreter in his native tongue, and a McKenzie Friend whom I will refer to as SZSSJ, and who is also in immigration detention at the Villawood Detention Centre.

9    The background to the current proceeding may be summarised as follows.

10    At the hearing in the FCCA, on 17 September 2015, the applicant sought an order under r 16.05 of the Federal Circuit Court Rules 2001 (FCC Rules) to set aside an order made by the Registrar of the FCCA on 19 March 2015 which dismissed the applicant’s judicial review application in respect of a decision of the Refugee Review Tribunal (RRT) made on 26 November 2014. In that decision the RRT affirmed a decision by the Minister’s delegate not to grant the applicant a protection visa. The judicial review application was dismissed pursuant to r 13.03C(1)(c) of the FCC Rules because there was no appearance by or on behalf of the applicant when the application was listed on 19 March 2015 for a First Court Date.

11    The applicant also sought an interlocutory injunction in the FCCA to restrain the Minister from removing him from Australia.

12    The FCCA gave reasons for rejecting the application.

13    The primary judge identified the following three principles governing the power under r 16.05 of the FCC Rules:

(a)    whether there was a reasonable excuse for the applicant’s non-attendance;

(b)    the existence and nature of any prejudice which might flow to the other party from reinstating the proceedings; and

(c)    whether the applicant had a reasonably arguable prospect of success on his substantive application.

14    The FCCA determined the first of those matters against the applicant. It did not accept the applicant’s evidence as to why he had not attended the hearing. The FCCA disbelieved the applicant’s claim that he had not attended because he was unaware that his previous lawyers had not appeared for him. This evidence was disbelieved on the basis that the applicant said in cross-examination that he did not retain lawyers. The FCCA found that he had been assisted by friends and “the probabilities are that his friends would have assisted the applicant to file the application and would also have informed the applicant after the application was filed that the Court had listed the matter for a First Court Date on 19 March 2015”. The FCCA also found that it was probable that the applicant’s friends would have helped him overcome his literacy difficulties.

15    The FCCA then turned its mind to the third of the relevant principles, namely whether there were reasonably arguable prospects of success. It noted that the RRT was not satisfied that the applicant was a credible witness having regard to the following matters:

    the applicant had previously applied for a protection visa in 1999 on grounds which were inconsistent with the claims made by him in support of his subsequent visa application;

    his evidence in relation to his involvement with the BNP was so inconsistent and unpersuasive that the RRT could not accept that he was ever a member of that party;

    he gave inconsistent and confused evidence as to why he left his country of origin in 1999;

    his evidence as to whether he had been harmed in his country of origin was inconsistent;

    although in his visa application he had claimed that criminal elements may perceive him to be a person of wealth, he denied such fears and stated that he just feared harm from a particular organisation;

    his claimed involvement in Australian politics was vague and inconsistent; and

    the RRT was not satisfied that he was truthful in relation to his background in his country of origin.

16    The FCCA noted that his judicial review application contained two grounds, namely “Law Error” and “Over looked real Claim”. The FCCA found that neither ground disclosed an arguable ground of jurisdictional error because the first ground identified no specific legal error and the second ground was not arguable because the RRT's reasons disclosed that it had considered, but rejected, his claims for protection.

17    Accordingly, the FCCA held that no reasonable explanation had been provided for the applicant’s non-attendance on 19 March 2015 and he did not have reasonable prospects of successfully prosecuting his judicial review application if it were reinstated.

18    It is important to note the grounds which the applicant proposes to raise should leave to appeal be granted.

19    The first is that he was denied procedural fairness. That ground, as I understood it, relates to the fact that he was in effect forced on at the hearing before the FCCA on 17 September 2015, notwithstanding that he had handed up to the FCCA the written document dated 16 September 2015 referred to above. It will be recalled that that document included under the heading “Orders Sought” an explicit application that the FCCA proceeding be adjourned to allow him to obtain documents and legal assistance.

20    It is notable that there was no reference within the otherwise comprehensive reasons of the FCCA to that particular application. Mr Markus, who appeared for the Minister, and opposed both the interlocutory application for leave to appeal and the interlocutory application for interim relief, also appeared for the Minister in the FCCA. He was placed in a somewhat awkward position being an advocate in the proceeding today as well as having first-hand knowledge and recollection about what occurred in the FCCA. It emerged in the course of the hearing before me that there was a dispute between the applicant’s version of what occurred at that hearing and Mr Markus’ recollection. I note that Mr Markus responded to questions put by the Bench as to what occurred and was not himself seeking to give evidence from the bar table. The Court acknowledges the customary courteous and helpful assistance which Mr Markus gives on occasions such as this.

21    Relevant to the issue as to whether there is a serious question to be tried and in terms of the traditional test for determining whether to grant leave to appeal as established in Decor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397 (Decor), there is a seriously arguable question as to whether the applicant was denied procedural fairness in that the FCCA appears not to have addressed and determined his application for an adjournment. It is true, as Mr Markus has pointed out, that the applicant has been in detention apparently since May and ought to have been well aware in advance of the 17 September 2015 as to when his application was to be heard.

22    The applicant in his affidavit refers to not being afforded an opportunity in the FCCA to obtain support and assistance from his McKenzie Friend. That, as noted above, is a reference to SZSSJ. It is evident that the applicant had hoped that SZSSJ might have been able to attend physically with him at the hearing in the FCCA on 17 September 2015 and provide him with assistance. I understand that did not occur because the Minister takes the understandable view that it is not the Minister’s obligation to make arrangements for some other person who is also in immigration detention to appear at a hearing at the FCCA to provide assistance as a McKenzie Friend to some other applicant.

23    I am troubled, however, that the document to which I have referred to above makes express reference to the applicant seeking an adjournment in order to obtain documents and legal assistance. While Mr Markus contended, and with some force, that this ought to be read as assistance from a McKenzie Friend, I am not at this interlocutory stage prepared to reach a finding to that effect. The document is sufficiently broadly expressed to constitute a desire on the part of the applicant to obtain legal advice and assistance in order to help him prosecute his application before the FCCA.

24    It is a matter of some regret that the transcript of the proceeding before the FCCA is not in evidence. Unfortunately, because of the urgent nature of these applications, it was not possible to obtain that transcript. Presumably it would have put beyond doubt whether there was any discussion about the applicant’s application for an adjournment and whether or not the applicant indicated that he wished his matter to proceed notwithstanding that his McKenzie Friend SZSSJ was not present with him.

25    Mr Markus contended that there would be no utility in restraining the applicant’s removal because he said that he had been unable to establish any arguable error in terms of the reasons which were given by the FCCA for dismissing his judicial review application. As I pointed out in my exchange with Mr Markus, I do not consider that it can be said that, if the applicant had been afforded procedural fairness, the FCCA would invariably have come to the same decision. It may well be that if an adjournment had been granted and legal advice obtained, different arguments could have been presented which might or would have resulted in a different outcome. That is sufficient to reject the lack of utility argument.

26    Having regard to all these matters there is an arguable case that the applicant was denied procedural fairness because his adjournment application was not dealt with. As far as the balance of convenience is concerned, it favours granting the restraining relief to enable the applicant to prosecute his appeal.

27    I am minded to grant that leave to appeal noting what I have said above about there being a serious question to be tried. And the second limb of the Decor test would also appear to be satisfied here (in terms of the substantial injustice the applicant would suffer were leave not to be granted). He will be given an opportunity to bring an appeal focussed inter alia on the question of whether he was denied procedural fairness. The appeal papers should include some probative evidence which goes to the issue of whether the applicant pressed his application for an adjournment or whether he waived it and was content for the matter to proceed in the fashion that it did. The transcript should be included in the Appeal Book.

28    For these reasons, the applicant is granted leave to appeal the judgment of the FCCA dated 17 September 2015. He is to file and serve within 10 days hereof a notice of appeal in the form of the draft notice of appeal attached to his affidavit dated 18 September 2015. Directions will be made in due course regarding the preparation and conduct of that appeal. The Minister by himself or by his Department, officers, agents or delegates is restrained from removing the applicant from Australia until his appeal is heard and determined or until further order.

29    As the applicant does not have legal representation it is not appropriate to make any order as to costs.

Associate:

Dated:    18 September 2015