SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 188

FEDERAL COURT OF AUSTRALIA

SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 188 SHLB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 810 of 2003 FINN, EMMETT AND LANDER JJ ADELAIDE 21 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 810 OF 2003

BETWEEN: SHLB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND LANDER JJ

DATE OF ORDER: 21 JULY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appellant's notice of motion filed on 4 June 2004 be refused. 2. The appellant pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 810 OF 2003

BETWEEN: SHLB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND LANDER JJ

DATE: 21 JULY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT: 1 The circumstances of this matter are marked by some number of omissions on the appellant's part. For some of these he is clearly responsible. For others, not so. The appellant is a Nepalese citizen who has made an unsuccessful application for a protection visa. That application was dismissed by the Refugee Review Tribunal ('The Tribunal') on 29 January 2003. The basis of the Tribunal's decision was that the Tribunal considered that key aspects of his testimony were not credible. 2 Proceedings for review under s 39B of the Judiciary Act 1903 (Cth) were instituted on 28 March 2003. On 26 August 2003 the Court gave directions for the appellant's case to be prepared for trial. A directions hearing was fixed on 3 October 2003. On that date the solicitor for the appellant appeared on the appellant's behalf. He acknowledged that the appellant had not complied with the directions of 26 August 2003. Accordingly Selway J dismissed the application on the motion of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). This order presumably was made under O 10 r 7(1)(a) of the Federal Court Rules: on the exercise of this power to strike out see Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at [395]-[396]. 3 On 23 October 2003 the appellant filed the notice of appeal, the dismissal of which is the subject of the present motion. The grounds specified in the appeal related essentially to an alleged denial of procedural fairness. Before the appeal was to be heard the appellant filed a notice of motion seeking to have his dismissed application reinstated. That application was heard by Mansfield J on 2 March 2004. That application was refused. 4 In his reasons for judgment, Mansfield J indicated that he was satisfied in the circumstances that the appellant had shown he had no real opportunity to comply with the directions given on 26 August 2003 because he had not been apprised of them in a timely manner. By the time of the motion before Mansfield J the orders of Selway J had already been entered. His Honour indicated that, if there was a power to set aside a perfected judgment, it should only be exercised in exceptional cases and that this was not such a case. His Honour indicated that the appellant had not presented any arguable case that demonstrated jurisdictional error on the part of the Tribunal. 5 Acknowledging that the appellant was a litigant in person, Mansfield J himself gave careful consideration to the Tribunal's reasons for decision. In the end he concluded: "Accordingly, I have come to the view that there is simply no arguable basis upon which it could be said that the Tribunal committed jurisdictional error in the conduct of its review. By reason of that conclusion, I do not think there is any basis for reaching the view that, by virtue of the way in which the applicant's claim came to be dismissed, any injustice was caused to him. I think his claim, whether he had complied with the directions or not, was bound to fail. There is nothing before me which indicates that there was any prospect at all of demonstrating jurisdictional error on the part of the Tribunal." The appellant's reinstatement motion was therefore refused. 6 We turn now to the appeal hearing that is the subject of the present motion. The appeal in this matter was set down for hearing on 13 May 2004 by the callover judge. On 11 May 2004 the appellant, who resides in Sydney, sent a facsimile to the South Australian Registry of the Court indicating that, as he had been sick since the first week of May, he was unable to attend the hearing scheduled for 13 May 2004. He stated that his doctor had advised that he have bed rest until Thursday, 13 May and that he was to visit the doctor again on Friday, 14 May. Attached to his facsimile was a standard form medical certificate used for employment purposes indicating he would be unfit for work for a period of two days and stating that he was suffering from "Flu". That certificate was dated 11 May 2004. 7 When the matter was called on for hearing on 13 May 2004 the appellant was absent. In these circumstances, on the motion of the Minister, the Court dismissed the appeal with costs under O 52 r 38A of the Federal Court Rules. The Court's reasons for so doing are stated briefly in SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 144. The Court noted (at par [3]) that the appellant had been advised by the registry that if he wished the hearing of his appeal to be adjourned he must attend the Court or arrange for someone to attend on his behalf to apply for and justify an adjournment. That did not occur. The Court also noted that an application had been made to Mansfield J to reinstate the application and it noted Mansfield J's reasons for refusing that application. 8 On 4 June 2004 the appellant applied to the Court to have the appeal reinstated. In his affidavit of that date he states that he notified the Court that he was unable to attend. He indicated that a court officer called him "many times". The affidavit disputes whether he was told he could send someone else to seek an adjournment on his behalf. He says he was told that he had to attend the hearing and that it would be conducted but that he was not physically fit to travel. 9 On 17 June 2004 Branson J gave directions that the appellant file any further evidence supporting his application by 28 June 2004 and that he file and serve written submissions by 5 July 2004. In response to those directions the appellant sent a facsimile letter to the Court that, in substance, appears to contain his submissions on the matter. This will be referred to again below. 10 The letter reiterated the appellant's disagreement with what he was purportedly told by the registry but he also claimed he could not speak and understand English well and, if he did not understand what had been said to him, it was not his fault. The letter went on to deal, first, with Selway J's decision and then with his motion for reinstatement before Mansfield J. Reference need only be made to the latter. The hearing of that motion was conducted by way of a telephone link with Sydney. The appellant contends he was not notified that "the telephone conversation" would be a hearing. He says that he was not prepared to present his case. He did not know he had to submit arguments as to why the Tribunal's decision was wrong and he could not answer Mansfield J's questions properly. Again he called in aid his language difficulties. 11 The balance of the letter attacks the Tribunal's decision in rather general terms. It is claimed the Tribunal misused its power in assessing his circumstances by not providing "proper references to justify its decision". It relies primarily upon what can only be regarded as a disagreement with the merits of his principal claim as found by the Tribunal. He then went on to allege bias on the basis that the Tribunal had pre-determined the matter. On the hearing of the present motion, the principal matter on which the appellant relied was that he claimed not to have had a sufficient opportunity to obtain documentary evidence to support his claim and that he wishes now to be able to adduce additional documentary evidence. 12 Before turning to the provisions of O 52 r 38A (which empower the Court to reinstate an appeal), it is appropriate first to comment on the original appeal itself. As was indicated earlier in these reasons, the order of Selway J was probably one made under O 10 r 7 of the Federal Court Rules. In any event the order dismissing the application under the Judiciary Act merely determined the question whether the proceedings had been prosecuted with due diligence, i.e. in compliance with directions given for the preparation of the matter for hearing. It did not involve a final determination of the matter in issue between the parties. Consequently, it is arguable that that order was in the nature of an interlocutory one such that an appeal to the Full Court could only be made with the leave of the Court: National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 at 703. Leave will ordinarily be granted only if (i) in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and (ii) substantial injustice would result if leave were refused supposing the decision to be wrong: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 13 No question was raised before the Full Court that dismissed the appeal as to the competency of that appeal. For present purposes we would note, though, that the appeal that the appellant now seeks to have reinstated is probably not one that he could bring as of right. Accordingly, any question of reinstatement must in any event take account of any need for leave to appeal. In consequence, whether the appellant has an arguable case is a matter of considerable present importance. 14 The motion has been brought under O 58 r 2. Insofar as presently relevant that rule is in the following terms: "(1) If a party is absent when an appeal is called on for hearing, the Court may: … (c) if the absent party is an appellant or cross-appellant, dismiss the appeal or cross-appeal; or (2) If an order is made under paragraph (1)(c) to dismiss an appeal or cross-appeal … the Court may: (a) set aside or vary the order; and (b) give directions for the further conduct of the appeal." 15 The power to reinstate is one that should be exercised with considerable caution, the more so where what is sought to be reinstated is in fact an application for leave to appeal. It would be insufficient simply to show that the Full Court erred in dismissing the application because it misapprehended the reason for, or circumstances of, the appellant's non-attendance if the application itself had no prospects of success in any event. 16 As we have already indicated, the appellant sought to have his original application reinstated and his motion to that effect was dismissed by Mansfield J, who gave careful consideration to the correctness or otherwise of the Tribunal's decision. Nothing in the material that has been put before us either in the appellant's letter of submissions or in oral submissions during the course of the hearing of the application, in any way suggests that the decision of Mansfield J was incorrect or that the Tribunal otherwise committed any jurisdictional error such as would entitle him to the relief he sought in his original application of review. 17 As to the appellant's additional evidence submission, the Tribunal was of the view that the appellant had "ample opportunity" to obtain and present further documents and it noted that he had presented a large number of documents to the Tribunal. No further complaint was made about this matter until the present hearing. There has been no procedural unfairness. Moreover the submission itself reveals a misconception as to the powers and function of this Court in reviewing Tribunal decisions. 18 Having considered the Tribunal's decision and Mansfield J's reasons for judgment, we are satisfied that this is not a matter in which the appellant has an arguable case: cf Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 58 FCR 125. For the same reason leave to appeal would in our view inevitably be refused because the appellant would be unable to show that substantial injustice would result if leave were refused supposing the decision of Selway J to be incorrect. 19 Accordingly, we would refuse the motion with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Lander.