FEDERAL COURT OF AUSTRALIA SZIKT v Minister for Immigration & Citizenship [2007] FCA 830 HIGH COURT AND FEDERAL COURT – Federal Court – appellate jurisdiction – procedure – application for extension of time to file and serve notice of appeal CITIZENSHIP AND MIGRATION – migration – review of decisions – Refugee Review Tribunal – conduct of review – notice to appear allegedly – failure of applicant to appear due to illness not notified by his agent to Tribunal Held: application for extension of time dismissed – failure to answer a s 424A notice meant applicant had no entitlement to appear before the Tribunal Migration Act 1958 (Cth) s 425 SZIKT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 500 OF 2007 MADGWICK J 22 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 500 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIKT Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MADGWICK J DATE OF ORDER: 22 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of the application assessed in the sum of $4,100. 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 500 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIKT Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MADGWICK J DATE: 22 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR 1 This is an application for an extension of time in which to file and serve a notice of appeal from a decision of the Federal Magistrates Court, whereby Scarlett FM dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") adverse to the applicant. 2 The judgment of his Honour was given on 27 February 2007 and the application to extend time was made on 27 March. The explanation was given that the applicant was awaiting receipt of his Honour's written reasons. Very fairly, the first respondent does not rely on the fact that the appellant is, in these circumstances, merely a few days out of time as a reason for refusing the application. Rather it is argued that the projected appeal would have no reasonable prospect of success and, accordingly, it would be futile to extend the time for appeal. 3 The subject decision of the Tribunal represented the third occasion on which the Tribunal has considered the applicant's case. Two earlier decisions were set aside by consent. 4 The applicant claimed to fear persecution in his native China as a Falun Gong practitioner who had been detained and tortured. 5 The Tribunal, in a probable effort to ensure that there was no third mishap by it, caused two letters to be sent to the applicant in advance of the hearing which was fixed for 24 August 2006. The first, written on 25 July 2006, informed the applicant that the Tribunal was unable to make a decision favourable to him simply on the material which was before it and invited him to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The applicant responded to this on 16 August 2006, indicating that he did want to come to the hearing. 6 In the meantime, on 3 August 2006, the Tribunal wrote to the applicant, seeking his comment on information that, subject to any comments he might make, would be the reason or part of the reason for deciding he was not entitled to the protection visa which he sought. The information was that his description of a particular incident of torture bore remarkable similarities with that of a text to be found on the Falun Gong or Falun Dafa's website which was posted before the applicant prepared his visa application. 7 The Tribunal member warned the applicant that: It appears that your text has been copied from the Falun Dafa website, with slight amendments to make it appear as if [the incident] was your own experience and to make detection of the copying more difficult. This is relevant because it could indicate that you did not experience the past harm as claimed and, moreover, cast doubt on your creditability generally. The letter continued: You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 28 August 2006. IF YOU DO NOT GIVE COMMENTS BY 28 AUGUST 2006, THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE. If you have any questions you can call me on the number below. 8 In writing the two letters, it is clear that the Tribunal member was, as to the first letter, acting under s 425 of the Act and, as to the second, acting under s 424A. The applicant did not in the event attend the hearing and the Tribunal proceeded to determine the matter purportedly pursuant to s 426A of the Act. However, the Tribunal said: In the circumstances of the applicant's failure to attend the hearing and his failure to respond to the Tribunal's letter containing adverse information, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 9 Thus, it is more correct to say that the Tribunal acted under such powers as it had, including those accorded to it by s 426A. The applicant told the Court below that he had not attended the hearing because he was ill, that he had obtained a medical certificate, given it to his migration agent and advised that agent of his illness a day before the hearing, the inference being that he left it to the agent to notify the Tribunal and seek an adjournment. No such notification was ever received by the Tribunal. 10 His Honour dealt with the matter on the basis that "there is no evidence that the Applicant, or the Applicant's agent, or anybody else, ever, notified the Tribunal that the Applicant was not able to attend the hearing due to illness" and in his Honour's view "there is no reason shown as to why the Tribunal should not have exercised its power under s 426A … to decide the review on the basis of the material before it". 11 His Honour further noted, in denying that there had been any breach of s 425, that the Tribunal had allowed a time limit extending four days past the hearing date for the applicant to provide any comment on the matters as to which the s 424A letter had been sent to him and the Tribunal did not sign the decision until 30 August. 12 His Honour said: "There was ample time, therefore, for the Applicant to advise the Tribunal of his illness, and there was ample time for the Applicant to have made written comments on the matters referred to in the Tribunal's s 424A letter of 3rd August." 13 But for the matter to which I am about to refer, it seems to me that, leaving aside the evidentiary deficiency (which might in the case of an unrepresented appellant charitably be cured if he could belatedly produce evidence, even on appeal), there might be a case that s 425 contemplates that a real and effective invitation will be given and that there can be an innocent failure by the Tribunal to exercise its jurisdiction in a case of genuine illness, where there is no personal fault on the part of an applicant in notifying the Tribunal of such illness. 14 However, when one goes to s 422B of the Act, which constitutes Div 4 of the Act as "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with", s 425 in its entirety must be the source of any such protection for such an ill applicant. Subsection (1) of s 425 provides that "[t]he Tribunal must invite the applicant to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review". However, subs (2) provides that: Subsection (1) does not apply if: … (c) subsection 424C(1) or (2) applies to the applicant; and, to drive the point home, subs (3) of s 425 says: "If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." Section 424C(2) provides: If the applicant: (a) is invited under section 424A to comment on information; and (b) does not give the comments before the time for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information. 15 Thus in the applicant's circumstances he had no entitlement to appear before the Tribunal nor did the Tribunal have an obligation past 28 August 2006 to invite him to appear. It seems to me, therefore, that even if his story were correct and could be (even very belatedly) established by evidence, it could not be said that there was any jurisdictional error. It seems to me that the contrary is unarguable. 16 Accordingly, I think that the submissions of the respondent are well-founded and that it would indeed be futile to extend the time. I therefore decline to do so and the application will be dismissed with costs. Costs will be assessed in the sum of $4100. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 6 June 2007 Counsel for the Applicant: The appellant appeared in person Counsel for the Respondent: Tim Reilly Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 22 May 2007 Date of Judgment: 22 May 2007