SZBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 99 (10 February 2006)

SZBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 99

SZBJL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 824 of 2005

ALLSOP J
10 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 824 of 2005

BETWEEN:	SZBJL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	10 FEBRUARY 2006
WHERE MADE:	SYDNEY

1. The notice of motion of the applicant filed on 14 December 2005 be adjourned to 4.30 pm on Tuesday, 28 February 2006.

2. The respondent's representatives are relieved from any obligation to attend on that day.

3. On or before Friday, 24 February 2006 the applicant is to file and serve any further submissions upon which he would seek to rely at the hearing of the appeal should the court set aside the orders of 2 December 2005.

4. If the court is of the view upon reading the submissions or upon hearing the applicant on 28 February or for any other reason that there is an arguable ground of appeal that matter will be identified to both parties and the court will hear the Minister's representatives as to why the orders of December should not be set aside.

5. If the court is of the view in the light of submissions of the applicant, if any, and the oral submissions of the applicant, if any, that there is no apparent ground for a successful appeal the parties may assume that the notice of motion will be dismissed on the basis that to do otherwise would be futile.

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 824 of 2005

BETWEEN:	SZBJL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	10 FEBRUARY 2006
PLACE:	SYDNEY

1 The applicant before me applies by notice of motion to set aside orders made by the Court, that is through me, on 2 December 2005. Those orders dismissed an appeal the applicant brought from a decision of the Federal Magistrates Court made on 10 May 2005 pursuant to s25(2)(B)(bb)(ii) of the Federal Court of Australia Act 1976. That dismissal occurred because of the non-attendance of the applicant. On that day I placed into evidence various material which explained communications that had occurred between the then appellant and my associate, and between my associate and the solicitor for the Minister.

2 The then appellant had faxed to my chambers a medical letter in the form that is before me today and was before me on 2 December 2005. I took the view on that occasion as reflected in my brief reasons and the transcript of that day that there was no adequate explanation, from the faxed medical letter or otherwise, of the absence of the appellant and I dismissed the appeal. The evidence before me today is by way of an affidavit of the applicant, an affidavit of Ms Hartcher-O'Brien and Exhibit A which was before me on 2 December 2005. There has also been oral evidence of the applicant answering questions under cross-examination from Mr Cramer, who appears for the Minister.

3 The applicant answered Mr Cramer's questions frankly and honestly to my observation. Importantly, I think, he indicated in the cross-examination that he had his priorities in December and he was not well. The applicant accepted that he was not told either by the solicitor for the Minister or my associate that he need not attend court. Also, the applicant from the bar table accepted that a file note of my associate of 25 November 2005 was accurate. That file note, in discussing the position said, amongst other things, the following:

4 The evidence reveals that on 28 November 2005, the solicitors for the Minister sent a letter to the applicant squarely indicating to him that he needed to attend. The applicant frankly accepted that he received that letter prior to 2 December 2005. The affidavit of the applicant and what he said today in court reveals the possibility that there may have been some confusion on his part as to whether he needed to only send a medical certificate in. I think the likelihood of the position is that the applicant knew that he should be here but says he felt unwell and so did not come.

5 Matters of this character, that is applications for protection visas, are of their nature potentially very serious. So much is apparent from the subject matter of the Refugees Convention and the nature of persecution which can arise. I am far from convinced that there is any real basis for this applicant to say to the court now that there was a good reason for his non-attendance on 2 December 2005. However, I am concerned that there may be the legitimate possibility of a misunderstanding on the day. Therefore I am prepared to work on the basis that there may have been a misunderstanding. However, that is not the end of the matter. The application to set aside these orders must not only deal with the non-attendance, it must deal with the question of discretion as to whether there is any point in setting aside my orders.

6 I have read the decision of the Refugee Review Tribunal (the Tribunal) both before 2 December and before today and I have read the decision of the learned federal magistrate both before 2 December and before today. I have also read the applicant's primary submissions filed on 15 August 2005 and the submissions filed on behalf of the Minister filed on 28 November 2005 before 2 December and before today. I am unable to identify in any of the submissions of the applicant any real basis for any conclusion that there was jurisdictional error in the Tribunal. Most importantly for the applicant, the decision relied upon by him in his notice of appeal NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; (2003) 133 FCR 89 has been not followed and overturned by later Full Court decisions dealt with in Mr Reilly's submissions.

7 Before I would set aside my orders, it is necessary for me to have some basis to think that there is an arguable case that the Tribunal committed jurisdictional error and therefore that the federal magistrate committed an error in failing to identify the same. At the moment on the papers there is no basis to conclude that any submission presently put by the applicant would satisfy that test. Therefore, as presently advised, notwithstanding that I am prepared to countenance the possibility that there may have been a misunderstanding and therefore I have a degree of hesitation in approaching this matter only by reference to the explanation for the absence of the applicant on 2 December, I am of the view at the moment, having read the submissions, that I do not consider there is any real argument to be put on the appeal.

8 Therefore, at the moment, subject to what I am about to say, I would be minded to dismiss the application. However, I do not propose to dismiss the application today; I propose to adjourn it in the circumstances that I will identify, which will minimise the cost to the parties but also provide the applicant with an opportunity to attend to his submissions.

9 What I propose to do, subject to hearing from the parties now, is to adjourn the matter to a date after my return from the Full Courts in Brisbane, to 4.30 on Tuesday, 28 February 2006, at which time I will hear the applicant on the merits of his appeal. The applicant will have until Friday, 24 February to file any further submissions that he wishes to file.

10 On that Tuesday, 28 February, I will dispense with any need for the Minister to attend and no orders will be made allowing the application on that date. If any aspect of any written submissions filed on or before Friday, 24 February, or any aspect of any oral submissions of the applicant made to me on 28 February lead me to conclude that there may be an argument it may be necessary to put that matter to the Minister's counsel. That will give a clear opportunity for the applicant to persuade the court that there is some utility in setting aside the orders of 2 December.

11 The other matter which, subject to the parties putting any further submissions today, persuades me to take the course I am minded to take is that I would anticipate the likelihood of judgment being pronounced in a number of Full Court matters of which I am a member of the bench dealing with the operation of s 424A within that period of two weeks. I would like the opportunity of checking once more as I have already done once whether there is conceivably an issue under that section as interpreted by the Full Court in those appeals if that is a relevant consideration.

12 Therefore what I would propose is that the applicant be given until Friday, 24 February to file and serve any further written submissions he would wish to put on the appeal should he be successful in the notice of motion brought today and that the matter stand over until 4.30 pm on Tuesday, 28 February before me so that the applicant has an opportunity to orally address those submissions and the issues in those submissions but I would excuse the Minister from attending on 28 February. If it be the case that those submissions, or the oral submissions or both persuade me that there is a matter to be answered I will set out in full in a letter to the parties what I need hear the Minister about. Otherwise I will make orders on that day on the notice of motion that are not adverse to the Minister if that is how I view the matter on that day.

(1) The notice of motion of the applicant filed on 14 December 2005 be adjourned to 4.30 pm on Tuesday, 28 February 2006.

(2) The respondent's representatives are relieved from any obligation to attend on that day.

(3) On or before Friday, 24 February 2006 the applicant is to file and serve any further submissions upon which he would seek to rely at the hearing of the appeal should the court set aside the orders of 2 December 2005.

(4) If the court is of the view upon reading the submissions or upon hearing the applicant on 28 February or for any other reason that there is an arguable ground of appeal that matter will be identified to both parties and the court will hear the Minister's representatives as to why the orders of December should not be set aside.

(5) If the court is of the view in the light of submissions of the applicant, if any, and the oral submissions of the applicant, if any, that there is no apparent ground for a successful appeal the parties may assume that the notice of motion will be dismissed on the basis that to do otherwise would be futile.

14 On 28 February 2006, if he so wishes, the applicant should also address the court as to why he should not pay the costs of today, even if the orders of December are set aside in the light of all the evidence.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

The Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:	Mr B Cramer

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	10 February 2006

Date of Judgment:	10 February 2006