SZAYF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 489 (26 April 2005)

MIGRATION – appeal dismissed for non-appearance – application to set aside – no satisfactory explanation – no arguable case – Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii), (bc)

Federal Court of Australia Act 1976 (Cth) s 25
Migration Act 1958 (Cth) ss 424A, 425

Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 cited
Glenhill Enterprises Pty Ltd v BP Australia Ltd [1993] FCA 1023 cited
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 cited

SZAYF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 275 of 2005

SACKVILLE J
SYDNEY
26 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 275 of 2005

BETWEEN:	SZAYF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 275 of 2005

BETWEEN:	SZAYF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	26 APRIL 2005
PLACE:	SYDNEY

1 On 24 March 2005, I dismissed an appeal by the appellant against a judgment of the Federal Magistrates Court given on 1 February 2005: [2005] FMCA 78. I dismissed the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (‘Federal Court Act’) by reason of the non-appearance of the appellant at the first directions hearing relating to the appeal.

2 On 29 March 2005, the appellant filed a motion seeking to set aside the order dismissing the appeal. He claimed in a supporting affidavit that he had been under medication for tuberculosis and, by reason of the side effects, he suffered from poor memory. He claims that his poor memory caused him to forget the date to attend the directions hearing.

3 The order made on 24 March 2005 was entered on that day. Nonetheless, the Court has power to set aside the order: s 25(2B)(bc).

4 The amended notice of appeal upon which the appellant relies raises the following grounds:

5 It will be seen that these grounds make complaints about the procedures followed by the RRT and do not refer to the judgment of the Magistrates Court. I shall, however, approach the notice of appeal as if it included grounds claiming that the Magistrate erred in law in failing to accept the grounds identified in the notice of appeal.

6 The authorities establish that on an application to set aside an order for summary dismissal made in the absence of the applicant or appellant, the most relevant factors to be taken into account are:

These are not necessarily the only factors to be considered, but they are usually the most significant: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503, at 506, per Hope JA (with whom Glass JA agreed), at 510, per Mahoney JA; Glenhill Enterprises Pty Ltd v BP Australia Ltd [1993] FCA 1023, at 7, per Whitlam J.

7 This is not the first occasion on which the appellant has failed to appear at a scheduled hearing. The Magistrates Court dismissed his application for review on 15 November 2004 by reason of his non-appearance: [2004] FMCA 898. That order was subsequently set aside on 6 December 2004, on the basis of medical evidence produced by the appellant.

8 In support of the present motion, the appellant read his affidavit. He claimed that he suffered side effects from the medication he was taking, including forgetfulness. It was his medication-induced forgetfulness that had led him to overlook the directions hearing.

9 The appellant was cross-examined on his claims. I accept that the appellant has a medical condition and that he is being treated for it by medication that has some side effects. However, there is no medical evidence before me that the side effects include loss of memory of the kind that the appellant blames for his non-attendance at the Court. The appellant claimed in his evidence that he had insufficient time to obtain medical evidence to this effect. However, he acknowledged that he had consulted a local doctor from time to time. He gave inconsistent explanations as to why he had not sought a medical certificate from his local doctor who, presumably, would have been able to see him at short notice. At one point in his evidence, the appellant suggested that the local doctor has insufficient knowledge of his condition. Later, however, he said that he had not attempted to consult the local doctor because the evidence he needed was already on the Court file.

10 The appellant also gave inconsistent evidence as to the circumstances of his non-attendance at the directions hearing held on 24 March 2005. His initial account was that he had simply forgotten the date and that this was attributable to the side effects of his medication. Later, he said that he had mistaken the date, thinking that it was 28 March 2005 rather than 24 March 2005. He did not, however, explain adequately how he came to form such a belief and what role, if any, his medication played in forming that belief. He acknowledged that he had been ill for some years, but that he had not taken any particular steps to ensure that he remembered the date of his forthcoming Court appearance. He had failed to take steps notwithstanding that he was aware from his experience with the Magistrates Court that failure to attend the Court at the directions hearing might lead to dismissal of his appeal.

11 In addition, the appellant gave inconsistent evidence as to how he came to file an application to set aside the order dismissing the appeal. At first, he said that he had noticed on 25 March 2005, Good Friday, that he had missed the directions hearing the previous day. He then attended the Registry at the first opportunity after Easter, namely Tuesday 29 March 2005. Subsequently, he said that he had received a letter notifying him that the appeal had been dismissed and it was that letter which had prompted his attendance at the Registry.

12 Although I accept that the appellant has a medical condition and takes medication for it, I am unable to accept his explanation for his non-attendance at the directions hearing on 24 March 2005. The inconsistencies in his evidence are such that I can place no reliance upon his evidence on that issue. It is neither necessary nor appropriate for me to make findings as to the true reason for the appellant’s failure to appear at the directions hearing. It is enough to find that the appellant has not provided a satisfactory explanation for his non-appearance.

13 The absence of a satisfactory explanation for the appellant’s non-attendance at the directions hearing would not necessarily lead me to dismiss his application. In particular, if he could show that his appeal is arguable it might well be appropriate in the interests of justice to allow the appeal to proceed. However, I do not think that the appeal has any reasonable prospects of success.

14 The learned Magistrate dealt with the arguments that the appellant seeks to raise on the appeal. As the Magistrate recounted, the RRT took very considerable care to ensure that the appellant would be fit enough to attend the hearing (which was in fact held on 3 April 2003). The RRT took into account medical evidence provided on the appellant’s behalf. A staff member spoke to the appellant’s doctor shortly before the hearing date was confirmed and was told that the appellant was well enough to attend the hearing. Moreover, the RRT carefully monitored the appellant’s ability to answer questions during the hearing and considered whether he was being hampered by his illness.

15 The Magistrate pointed out that the appellant had conceded that he had told the RRT that he did not need an interpreter. The Magistrate accepted that s 425 of the Migration Act may impose an obligation on the RRT to provide an interpreter in certain circumstances, in order to ensure that an applicant has a meaningful opportunity to give evidence and to address the concerns of the RRT. However, her Honour held that in this case no error had been established. Not only had the appellant made the concession to the RRT, in his application for a protection visa he stated that he spoke English. Furthermore, the RRT recorded that the appellant had appeared to understand the RRT’s questions and had been able to respond in a coherent and appropriate manner to the RRT’s questions. The RRT had not formed an impression that the appellant had experienced difficulties in understanding the proceedings. It was therefore satisfied that his English language skills were at a level which did not hamper his ability to give effective evidence to the RRT.

16 There is nothing to suggest that the Magistrate erred in rejecting the appellant’s contention that the RRT should have provided an interpreter for him.

17 The Magistrate rejected the appellant’s contention based on s 424A of the Migration Act on the ground that the RRT was not obliged to put to the appellant general country information by reason of s 424A(3)(a). There was no error in doing so: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.

18 I should mention that I gave the appellant the opportunity to elaborate on the grounds identified in his amended notice of appeal. Not surprisingly, he was not able to add anything to the grounds themselves. For the reasons I have given, I see no basis for a submission that the Magistrate fell into error in addressing these issues in her judgment.

19 I should add that the Magistrate considered whether, independently of s 424A of the Migration Act, the RRT had denied procedural fairness to the appellant. Her Honour took this course notwithstanding that the appellant did not specifically raise the question of procedural fairness. She concluded that the appellant had received a fair hearing from the RRT. The appellant has not advanced any matter which would challenge this finding.

20 In these circumstances, the appellant’s motion must be dismissed, with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

The Appellant appeared in person.

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	21 April 2005

Date of Judgment:	26 April 2005

1.	The application to set aside the orders made on 24 March 2005 be dismissed.
2.	The appellant pay the respondent’s costs of the application.

(i)	the Refugee Review Tribunal (‘RRT’) failed to consider the impact of his illness upon his capacity to give evidence before the RRT;
(ii)	although the appellant said he did not need an interpreter for the hearing, the hearing was conducted without a qualified interpreter and therefore the RRT failed to ‘follow compulsory procedures’; and
(iii)	the RRT breached s 424A of the Migration Act 1958 (Cth) (‘Migration Act’) in that it failed to notify the appellant of country information on the basis of which it rejected his claims for a protection visa.