SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 (17 February 2009)

Last Updated: 18 February 2009

FEDERAL COURT OF AUSTRALIA

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZLIH and SZLII v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1351 OF 2008

COWDROY J
17 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1351 OF 2008

BETWEEN:

SZLIH First Applicant SZLII Second Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	17 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion filed on 29 January 2009 be dismissed.
2. The Applicants pay the costs of the First Respondent.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1351 OF 2008

BETWEEN:

SZLIH First Applicant SZLII Second Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	17 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is a Notice of Motion to vacate orders made by the Court on 21 November 2008. By such orders, the Court dismissed, for want of appearance, the applicant’s Application for an Extension of Time to File and serve a Notice of Appeal from a decision of Federal Magistrate Lloyd-Jones delivered on 14 July 2008.
2. The decision of Lloyd Jones FM dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 23 August 2007. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the applicants.
3. The applicants did not file their appeal from the decision of Lloyd Jones FM within the time prescribed by the Federal Court Rules (‘the Rules’). Accordingly it was necessary for them to make the application for extension of time to this Court.
4. The hearing of the application for extension of time was fixed for 21 November 2008. On that day the applicants failed to appear and were in default under O 35A r 2 of the Federal the Rules’. As a result, the Court ordered that the application be struck out pursuant to O 35A r 3 and ordered the applicants to pay the respondents’ costs in the sum of $1,500.00 (‘the orders’).
5. By Notice of Motion filed on 29 January 2009 the applicants seek the following orders:
   1. Order made by Cowdroy J on 21 November 2008 be vacated.
   2. The matter be re-instated for further hearing.
   3. A Writ of Certiorari be issued removing the decision of the Refugee Review Tribunal in the matter of SZLIH and SZLII.
   4. An order in the nature of Prohibition be issued directed to the First Respondent prohibiting the First Respondent from giving effect to the Refugee Review Tribunal’s decision in the matter of SZLIH and SZLII.
   5. An order in the nature of Mandamus be issued directed to the Refugee Review Tribunal requiring it to hear and determine according to law the application for review of the decision of the Delegate of the First Respondent.
   6. Costs.
6. The hearing of the applicant’s Notice of Motion has taken place by telephone at the request of the first applicant and he has been assisted by an interpreter. The motion is supported by an affidavit of the first named applicant (‘the applicant’) which provides an explanation for the applicants’ absence from the hearing on 21 November 2008. The applicant states that he resides at Griffith, a distance of approximately 600 kilometres from Sydney and did not have monies for his travel costs and accommodation; his wife was ill; he was depressed and distressed because of his wife’s condition and because of the stress of court matters; that he is unable to read or write English; does not understand the law in Australia and could not afford a lawyer.
7. The applicant states that he relied upon the advice of friends who told him that his Notice for Extension of Time and Draft Notice of Appeal were sufficient for the Court to make a decision. He states that he was not aware that the proceedings would be dismissed if he did not attend Court. He states that he waited to receive a letter from the Court, but as he received nothing he telephoned the Court and learnt that the order had been posted to an address which he states was an old address. He states that he told the Court staff of his new address and in January 2009 received the orders. He states that one of the orders of the Court was that the application be dismissed although he had tried his best ‘to comply’. For these reasons he seeks to have restored his application for extension of time to file an appeal.
8. Accordingly, the Court is required to determine the Notice of Motion filed on 29 January 2009.

BACKGROUND

9. The applicants are citizens of India who arrived in Australia on 17 March 2007. On 1 May 2007 the applicants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 18 May 2007. On 6 June 2007 the applicants applied to the Tribunal for a review of that decision.
10. Before the Tribunal the applicant claimed that he ran a business with his brother producing submersible pumps. He claimed that the company was currently operating under stress as it could not pay its bills to a manufacturer. The inability to pay arose due to a disagreement with one of the business’ customers who disputed the amount they owed the applicant’s business. The applicant claimed that threats had been made towards him and his brother from the operators of the customer who was in debt to them. Both matters in dispute relating to the debts owed were litigated in India. The applicant claimed protection in Australia due to the court case against him.
11. The second applicant, the wife of the first applicant, did not make any independent claims to protection.

THE TRIBUNAL DECISION

12. The Tribunal found that any unfavourable ruling of the Court in India in the manner described by the applicant could not be considered serious harm amounting to persecution. The Tribunal found no evidence of serious harm amounting to persecution. The Tribunal also stated that it was not satisfied that any Convention-related factor in the harm feared by the applicant. The Tribunal was not satisfied that the applicant faced a real chance of Convention-related harm in the reasonably foreseeable future.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

13. By application filed in the Federal Magistrates Court of Australia on 14 September 2007 the applicant sought judicial review of the Tribunal’s decision.
14. In the initial application the applicants claimed:
    1. The Tribunal’s decision was in breach of s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’).
    2. The Tribunal made an error of law and its decision lacked procedural fairness.
    3. The Tribunal denied the applicant natural justice as it failed to provide more opportunity for the applicant to present his evidence before the Tribunal and the Tribunal was wrong in concluding that the applicants’ claims were not convention related.
15. At the first Court date on 30 October 2007 the applicants failed to appear. Accordingly Federal Magistrate Lloyd-Jones adjourned the proceedings for directions on 6 November 2007. The applicants again failed to appear at that hearing. In consequence his Honour dismissed the application pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

NOTICE OF MOTION TO FEDERAL MAGISTRATES COURT

16. On 31 March 2008 the applicants filed a Notice of Motion seeking to have the matter reinstated. The Notice of Motion contained the following grounds:
    1. The Tribunal failed to consider the political opinion of the applicant.
    2. The Tribunal failed to assess the claims of the applicant based on his membership of a particular social group.
    3. The Tribunal made findings in the complete absence of evidence.
    4. The Tribunal erred in considering internal relocation as an alternative for the applicant.
17. Federal Magistrate Lloyd-Jones found that the grounds of review identified in the application did not raise or identify a jurisdictional error in the Tribunal decision. His Honour also stated that the grounds of review in the Notice of Motion did not bear any direct relation to the Tribunal decision. His Honour independently reviewed the Tribunal decision and found it was not possible to identify any jurisdictional error. His Honour was satisfied that all of the issues raised by the applicants were addressed and that the applicant’s claims were business, not Convention, related. His Honour dismissed the application for reinstatement.

EXTENSION OF TIME APPLICATION

18. On 28 August 2008 the applicant filed in this Court an application for an extension of time to file and serve a Notice of Appeal from the decision of Federal Magistrate Lloyd-Jones. Accompanying that application was an affidavit annexing a Draft Notice of Appeal which contained the following grounds:
    1. The Federal Magistrate erred in finding that there was no avenue for the applicants to identify an error, file an amended application and be successful at ultimate review.
    2. The Federal Magistrate erred in finding no jurisdictional error arising from the Tribunal decision.
    3. The Federal Magistrate erred in finding that the grounds of review identified in the application were not particularised and did not raise or identify a jurisdictional error in the Tribunal decision.
    4. The Federal Magistrate erred in dismissing the applicant’s application for reinstatement and the original application seeking review.
    5. The Federal Magistrate erred in finding that the issues the first applicant raised were business related and not convention related.
    6. The Tribunal decision is affected by jurisdictional error.

SUBMISSIONS OF THE APPLICANT

19. The applicants provided written submissions in support of their claim for extension of time. The submissions refer to Chan Yee Kin v Minister for Immigration and Ethnic Affairs; Soo Cheng Lee v Minister for Immigration and Ethnic Affairs; Kelly Kar Chun Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 429-431; Applicant A and Another v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 258-259; and Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 and to s 91R of the Act.
20. The applicants claimed that the Tribunal failed to accord procedural fairness to the applicant because of its failure to carry out its role in an inquisitorial manner; the Tribunal acted in a manifestly unreasonably manner towards the applicant because of its failure to consider the claims in accordance with the criteria in Article 1 (A)(2) of the 1951 UN Convention Relating to the Status of Refugees; the Tribunal fell into jurisdictional error in failing to find that the issues raised by the first applicant were Convention-related, ‘alternatively the tribunal failed to request information regarding the threats to the Applicants itself [sic]’.
21. The applicants also alleged that the Tribunal applied the law incorrectly and ‘committed jurisdictional error in so doing’.
22. Further, it was claimed that ‘the flawed interpretation of s 91R precluded the Tribunal member from a proper consideration of the Applicant’s claims’ and lastly that the Tribunal failed to reach the required state of satisfaction or non-satisfaction as per s 65(1) of the Act.

NOTICE OF MOTION TO THE FEDERAL COURT OF AUSTRALIA

23. Order 35 rule 7(1) of the Rules provides that the Court may vary or set aside a judgment or order before it has been entered. Since the order of the Court made on 21 November 2008 was entered by the Deputy District Registrar on that day, such provision does not assist the applicants.
24. Order 35 rule 7(2) relevantly provides that, where the court is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, it may, if it thinks fit, vary or set aside a judgment or order after the order has been entered where:

(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) ...
(c) the order is interlocutory;

25. The decision sought to be appealed from was made in the absence of the applicants and was interlocutory in nature. In determining the application for the motion. Further, the Court is not exercising the appellate jurisdiction in Division 2 of Part III of the Act. Accordingly, the Court has power to determine the Notice of Motion filed on 29 January 2009 seeking to vacate the Court’s orders made on 21 November 2008.

MERITS OF NOTICE OF MOTION

26. The reasons provided by the applicant for his non-attendance include a reference to an illness of his wife. No medical certificate has been provided to verify that his wife is unwell. Further, there is no explanation suggesting any reason why the applicants could not have contacted the Court to request that their hearing be undertaken by telephone, as they have done with the present application. It is apparent that similar reasons have been used by the applicants for previous hearings. In support of his original application for an extension of time in which to file and serve his proposed Notice of Appeal, the applicant said that he was depressed; did not have the means to attend court; and was unaware of the time limits in respect of the filing of notices of appeal. Significantly, in the present motion the applicant does not suggest that he was unaware that the hearing of his motion was to take place on 21 November 2008 at 10.15 am. The Court thereby infers that the applicant was prepared to allow the Court to determine the application for extension of time, and thereafter to seek to have the orders set aside.
27. In the Application for an Extension of Time, the applicants nominated their address as 24 Coolah Street, Griffith. The Notice of Motion seeking vacation of the orders shows the address of the applicants as 1/24 Coolah Street, Griffith. Accordingly, it is difficult to comprehend what was intended by the applicants when they state, as a reason for failing to communicate with the Court, the fact that they had changed their address. Before the Court the first named applicant stated that his address had not changed since 21 November 2008.
28. For these reasons, the Court finds the explanation provided by the applicant as unconvincing and without merit. However, before proceeding to dispose of the application the Court will consider hereunder whether the extension of time application would have had any prospect of success, even if the orders of 21 November had not been made.

FINDINGS – EXTENSION OF TIME

29. Since the decision of Lloyd-Jones FM was delivered on 14 July 2008 any Notice of Appeal pursuant to O 52 r 5 of the Rules was required to be filed by 4 August 2008. The application was not filed until 28 August 2008. Accordingly, leave of the Court was required pursuant to O 52 r 15 to file a notice of appeal. Such leave will only be granted if ‘special reasons’ are shown: see Jess v Scott (1986) 12 FCR 187 at 195. The principles guiding the Court in its assessment of whether special reasons exist have been stated in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349. In summary, the Court is required to consider whether there has been an adequate explanation for the delay; whether any prejudice would be occasioned to the respondents if leave were granted; and whether the merits of the proceedings demonstrate that there is at least an arguable case for the appellants if leave to appeal were granted.
30. The Court also observes that the decision of Lloyd-Jones FM is essentially interlocutory. His Honour’s decision does not finally determine the right to the parties: see Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767; NZI Securities Australia Ltd and Others v Poignand [1994] FCA 1219; (1994) 51 FCR 584. Accordingly, leave of the Court from the decision of an interlocutory decision is also required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (‘the Court Act’). Such leave will only be granted if the Court were satisfied that the decision sought to be appealed from was attended by sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397.
31. The affidavit of the first named applicant sworn on 27 August 2008 states that he did not lodge the appeal because he was not a highly educated person and could not read or write English; he was unemployed and did not have monies to consult a lawyer and the Court did not advise him of any time for the lodgement of an appeal. He did not consult anyone about the appeal. He also states that he was depressed as there was a bomb blast in Ahmedabad which is in proximity to his home village and he was concerned for his children and other family members.
32. The applicants have had a repeated history of failing to comply with time requirements. In his judgement Lloyd-Jones FM observed that the applicants failed to attend before him on 30 October 2007 and 6 November 2007. The explanation for the non-attendance which was provided to the Federal Magistrates Court on 14 July 2008 was claimed to be due to the lack of skills of the applicants in speaking or writing English.
33. It is not acceptable that the applicants failed to make proper inquiries to determine when their appeal was required to be lodged. The Court would have found their reason for non-compliance with the Rules to be implausible.
34. As to the question of any prejudice being occasioned to the respondent if leave were granted, the Court would not have found that any such prejudice existed.
35. The Court considers the proposed grounds of appeal. The grounds of appeal are unparticularised. None of the grounds identify any jurisdictional error of Lloyd-Jones FM. The applicant’s allegations of error by the Federal Magistrate and by the Tribunal are insufficient to found any valid ground of appeal. The appeal must have sufficient prospects of success to make it just that it should proceed: see W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13]; WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].
36. Lloyd-Jones FM was entitled to find, for the reasons he provided, that the application for judicial review raised no serious issue to be tried since no arguable case of jurisdictional error had been raised.
37. It is apparent that the applicant’s claim to be a refugee within the meaning of the Convention cannot succeed. There is no Convention-related reason which exists which could lead to the conclusion that the applicants have or will suffer persecution for a Convention related reason.

CONCLUSION

38. The Notice of Motion is to be dismissed. Further, the Court is not satisfied that special reasons would have existed to warrant the grant of leave which was mandatory under O 52 r 5, and also by s 24(1A) of the Court Act. The Application for Extension of Time to serve a Notice of Appeal would not have succeeded.
39. The Court makes the orders listed at the beginning of this judgment.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 17 February 2009

Counsel for the Applicants:	Applicant appeared in person by telephone.
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	17 February 2009
Date of Judgment:	17 February 2009