SZLRP v Minister for Immigration and Citizenship [2009] FCA 77

FEDERAL COURT OF AUSTRALIA

SZLRP v Minister for Immigration and Citizenship [2009] FCA 77

SZLRP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1726 of 2008

GRAHAM J

9 FEBRUARY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1726 of 2008

BETWEEN: SZLRP

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 9 FEBRUARY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Application for Leave to Appeal be dismissed. 2. The Applicant pay the First Respondent's costs of the Application filed 3 November 2008. 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 1726 of 2008

BETWEEN: SZLRP

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 9 FEBRUARY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant was born in Sarsa, Chandigarh, India, on 22 June 1985. He arrived in Australia on 28 March 2007, travelling on a passport issued to him in India, on 20 February 2007, entering Australia on a temporary business visa granted on 23 May 2007. 2 On 9 May 2007 he lodged an Application for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 7 August 2007. 3 On 29 August 2007 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. By a decision signed 12 October 2007 and handed down on 1 November 2007, the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. 4 Thereupon, the applicant filed an application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. That application was dealt with by a Federal Magistrate in a manner to which reference will be made hereafter. The relevant judgments in the Federal Magistrates Court of Australia are SZLRP v Minister for Immigration & Anor [2008] FMCA 1033 and SZLRP v Minister for Immigration & Anor (No.2) [2008] FMCA 1445. 5 The grounds of application relied upon in the application filed 26 November 2007 were described by the learned Federal Magistrate as 'bare assertions of error'. Relevantly, those grounds provided as follows: '… 2. The Refugee Tribunal has not taken into account all the relevant information when makings its decision, and in doing, so has erred in law. 3. I was denied procedures [sic] fairness when the Tribunal member did not believe in my submissions and oral evidence. The RRT member used old and outdated materials to justify his decision. The member based his whole decision on one sided ifnormaiton [sic] for denying the application for the people coming from India.. The Tribunals decision is totally contradictory of Professor Hathaway's quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details. James Hathaway 1991 "The law of refugees status" Butterworths Cananda ) contrary to it's claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that. The applicant fees [sic] that the Tribunal did not give weight to the statements made by him in particular harrassment from the political leaders. …' 6 I agree with her Honour's observation that the grounds of the application made 'bare assertions of error'. 7 It would appear that before the learned Federal Magistrate on 14 October 2008 the applicant indicated that the Tribunal did not accept his information and did not believe him. Her Honour observed that the grounds of the application were 'more in the nature of a disagreement with the findings and conclusion of the Tribunal. Such complaints invite merits review, which this Court cannot undertake ….'. With the last-mentioned observation, I entirely agree. 8 As it transpires, the Application for Review came before the Federal Magistrates Court of Australia for directions on 13 December 2007. On that occasion the applicant was given leave to file and serve an Amended Application and any additional evidence upon which he intended to rely by 21 February 2008 but he chose not to avail himself of that leave. 9 The matter was set down for a final hearing on 4 June 2008. On 3 June 2008 a letter was sent from the learned Federal Magistrate's chambers to the applicant advising him that the hearing had been rescheduled for 10.15 am on 21 July 2008. On that occasion, the applicant did not appear. In accordance with Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, her Honour proceeded to dismiss the Application filed 26 November 2007. Her Honour ordered that the applicant pay the respondent Minister's costs fixed in the amount of $4500. In addition, her Honour directed that the Minister provide the applicant with a copy of the orders made by her and also a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001. 10 Rule 16.05 relevantly provided: '… (2) The Court may vary or set aside its judgment or order after it has been entered if: (a) the order is made in the absence of a party; or … (c) the order is interlocutory; or …' 11 By an application filed 24 September 2008 in the Federal Magistrates Court of Australia the applicant sought relief, including: '1. An order to set aside the order dated 21 July 2008 by the Federal Magistrate Emmett.' 12 That application was supported by an affidavit of the applicant sworn 29 August 2008 and filed on 24 September 2008. The application filed 24 September 2008 came before the same Federal Magistrate as had dismissed the application on 21 July 2008. In the course of her reasons for judgment of 14 October 2008, her Honour said: '5. … I am not satisfied that the applicant has satisfactorily explained his failure to appear at the hearing on 21 July 2008. To say that he forgot is not a satisfactory explanation. … … 10. … the applicant has not satisfied this Court that there is an arguable case to be tried in respect of his application for judicial review of the Tribunal's decision, dated 12 October 2007. …' 13 Her Honour made an order on 14 October 2008 which was varied on 20 October 2008. By that order the application filed 24 September 2008 was dismissed. An earlier order made on 14 October 2008 provided for the applicant to pay the respondent Minister's costs in respect of that application fixed in the amount of $800. 14 In reaching the conclusion that she was not satisfied that the applicant had satisfactorily explained his failure to appear at the hearing on 21 July 2008, her Honour said that the applicant had informed her that he had received letters notifying him of the rescheduled hearing date of 21 July 2008 but had later forgotten that date. Before me, he acknowledged that he had received the letter advising 21 July 2008 as the hearing date but because it reached him some time before the relevant date, he had forgotten the correct date and thought it to be 23 July 2008 rather than 21 July 2008. 15 On 3 November 2008 the applicant filed a Notice of Appeal in this Court by which he purported to appeal from the whole of the judgment of the Federal Magistrates Court given on 14 October 2008. By a Notice of Objection to Competency filed 13 January 2009, the solicitor for the Minister objected to the jurisdiction of the Court to hear the appeal since no grant of leave to appeal had been given and the judgment of the learned Federal Magistrate of 14 October 2008 was interlocutory, not final. 16 I agree with the Minister's submissions in this regard. Rather than dismiss the application outright, I was invited by the solicitor for the Minister to treat the Notice of Appeal filed in this Court on 3 November 2008 as an application for leave to appeal from the judgment of the learned Federal Magistrate of 14 October 2008 under Order 52 rules 4 and 5 of the Federal Court Rules. The applicant asked me to deal with his case in that way and I duly ordered that the Notice of Appeal from the judgment of Federal Magistrate Emmett given on 14 October 2008 and varied on 20 October 2008 be treated as an application for leave to appeal from the judgment as varied under Order 52 rules 4 and 5 of the Federal Court Rules. 17 On the hearing of the application for leave to appeal it was necessary for the applicant to establish that Federal Magistrate Emmett's judgment of 14 October 2008 as varied was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused. 18 In relation to the failure of the applicant to appear on the hearing of his application for review in the Federal Magistrates Court on 21 July 2008, he simply advanced his error in recalling the date as notified to him, to which reference has been made. 19 In relation to her Honour's observation that the applicant failed to satisfy her that there was an arguable case to be tried in respect of his application for judicial review filed 26 November 2007, the applicant was unable to identify any matter which could properly be taken into account by this court in deciding that the Tribunal's decision of 12 October 2007 was affected by jurisdictional error. All that the applicant chose to say in respect of a perceived error in the judgment of her Honour was that he wanted to extend the time for his next hearing. 20 In my opinion, no case has been advanced which, if accepted, would establish that her Honour fell into error in dealing with the applicant's application to set aside the order made on 21 July 2008. Accordingly, in my opinion, the application for leave to appeal should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.