FEDERAL COURT OF AUSTRALIA SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 Citation: SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 Appeal from: SZQPE v Minister for Immigration [2012] FMCA 174 Parties: SZQPE v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 362 of 2012 Judge: FLICK J Date of judgment: 29 May 2012 Catchwords: MIGRATION – failure of Appellant to appear – power to proceed in appellant's absence – desirability of not dismissing appeal with merit – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 25 Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) 36.11, 36.74 and 36.75 Federal Court Rules 1976 (Cth) O 52 r 38A Cases cited: A v Minister for Immigration and Multicultural Affairs [1999] FCA 630, cited Abebe v Commonwealth of Australia (1999) 197 CLR 510, cited Barzideh v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 337, cited Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931, cited Gonzalez-Servin v Ford Motor Co 662 F3d 931 (7th cir) (2011), cited In Marriage of F [2001] FamCA 348, 161 FLR 189, cited Neil v Nott (1994) 121 ALR 148, cited Refugee Tribunal, Re; Ex Parte HB [2001] HCA 34, 179 ALR 513, considered Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995, cited SZGWR v Minister for Immigration and Citizenship [2007] FCA 1306, cited SZJLH v Minister for Immigration and Citizenship [2008] FCA 626, cited SZJNR v Minister for Immigration & Citizenship [2007] FCA 1724, cited SZJOG v Minister for Immigration and Citizenship [2010] FCA 244, cited SZKDC v Minister for Immigration and Citizenship [2008] FCA 164, cited SZKUZ v Minister for Immigration & Citizenship [2008] FCA 227, cited SZOBU v Minister for Immigration and Citizenship [2010] FCA 568, cited SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267, cited SZOZG v Minister for Immigration and Citizenship [2011] FCA 756, cited SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253, cited SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, cited SZQPE v Minister for Immigration and Citizenship [2012] FMCA 174, affirmed Justice R D Nicholson, 'Administrative Issues in Refugee Law' (2001) 28 AIAL Forum 40 Date of hearing: 14 May 2012 Date of last submissions: 15 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant did not appear Counsel for the Respondent: Mr J Pinder Solicitor for the Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 362 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQPE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: FLICK J DATE OF ORDER: 29 May 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the Respondent Minister. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 362 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQPE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: FLICK J DATE: 29 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of China. She was born on 20 November 1961. She married on 16 December 1980 and has two sons and one daughter. 2 She arrived in Australia on 9 September 2010 and on 6 December 2010 applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. That application was supported by a brief 5 paragraph written statement. A delegate of the Minister refused that application on 31 March 2011. 3 An application for review was lodged with the Refugee Review Tribunal on 6 May 2011. On 4 August 2011 that Tribunal affirmed the decision not to grant the visa. 4 Judicial review of the Tribunal's decision was then sought. On 23 February 2012 the Federal Magistrates Court dismissed the application for review: SZQPE v Minister for Immigration and Citizenship [2012] FMCA 174. 5 The Appellant now appeals to this Court. She failed to appear before the Court on 8 May 2012 when the appeal had been listed for hearing. With the assistance of an interpreter, the Appellant was telephoned and sought an adjournment. She complained that she had a "headache" and that "the world was spinning." Over the objection of the solicitor appearing for the Second Respondent, the proceeding was adjourned to Monday 14 May 2012 at 9.30 am. The Appellant was directed to provide a medical certificate as to her incapacity to attend Court on 8 May 2012. On 14 May 2012 the Appellant again failed to appear. No medical certificate had been provided to the Court or the Respondent. 6 The solicitor for the Respondent Minister again sought to have the appeal dismissed. Reliance was placed upon s 25(2B)(bb)(i) or (ii) of the Federal Court of Australia Act 1976 (Cth). Those provisions are supplemented by rr 36.11, 36.74 and 36.75 of the Federal Court Rules 2011. The counterpart provision to r 36.75 was formerly to be found in O 52 r 38A of the now-repealed Federal Court Rules. There is no substantive difference between the two provisions. In common with the former O 52 r 38A(2), the current r 36.75(2) expressly provides that "the party who was absent may apply to the Court for an order … setting aside or varying the order…". 7 In some circumstances, and particularly in migration cases where it is not uncommon for an appellant to fail to appear, it may be appropriate to proceed with the hearing of an appeal rather than to dismiss it pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act: SZJNR v Minister for Immigration & Citizenship [2007] FCA 1724 at [2] per Greenwood J; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 per Kenny J; SZJLH v Minister for Immigration and Citizenship [2008] FCA 626 at [9]. Contrast: SZKUZ v Minister for Immigration & Citizenship [2008] FCA 227 per Logan J. 8 Rather than simply dismissing the appeal without considering its merits, the Court in the present appeal was taken through the Appeal Book in the absence of the Appellant. If an appeal has any merit, there may be reluctance to dismiss it simply because an appellant has failed to appear. 9 The present appeal, however, has no merit. It is to be dismissed pursuant to s 25(2B)(bb)(ii). Such was the similar result in SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 per Murphy J. The Grounds of Appeal 10 The Grounds of Appeal to this Court are cryptic – if not non-existent. 11 But they should, perhaps, be construed in the context of the case sought to be advanced before the Federal Magistrates Court. Before that Court, the grounds upon which judicial review were sought were expressed as follows (without alteration): 1. The Refugee Review Tribunal did not take my case seriously or consider my real situation carefully. 2. The Refugee Review Tribunal made the decision with baseless conjectures and suspicions on my case. 3. The tribunal member has completely ignored my real situation, and did not make analyses of my specific issues. The Refugee Review Tribunal investigation completely divorced from the specific circumstances. The Federal Magistrate rejected each of these grounds. As to the first, it was concluded that the Tribunal had not failed to consider any aspect of the claims being advanced. With respect to the second, it was concluded that it was "clear that the Tribunal's reasoning arose from the applicant's own evidence at the hearing and, to a lesser extent, from country information before it". It was thus concluded that the decision could not be said to be "baseless". The final ground was also rejected. The Federal Magistrate pointed out that the Tribunal accepted the factual claims being advanced and that it could not, accordingly, be said that the Tribunal had ignored the "real situation". 12 Against this background, the Notice of Appeal filed in this Court is devoid of any detail as to the appellable error said to have been committed by the Federal Magistrate. The Notice of Appeal thus provides in relevant part (again without alteration) as follows: Grounds of appeal 1. [State briefly but specifically, the grounds relied on in support of the appeal] 2. A writ of mandamus compelling the DIAC and RRT to rehear and redetermine of my application according to law. Orders sought 1. [State what judgment or orders the Appellant wants instead of the judgment or orders appealed from] 2 I want the DIAC and RRT make the decision on my case for reasonable and fair.. 3 I want the DIAC and RRT to assess the matter for the humanitarian. The consideration of the present appeal has proceeded upon the basis that the Appellant seeks to contend that the Federal Magistrate has erred in rejecting the grounds upon which judicial review was sought in that Court. To so construe the "Grounds of Appeal" is to do the best this Court can to ensure that an unrepresented party gains at least some measure of access to justice. Access to Justice? 13 The plight of the unrepresented is well-recognised. More so is this the case where the applicant before the Court is a person claiming refugee status. 14 Their difficulties are so pronounced that it is regularly called into question whether their claims are being considered and dealt with in accordance with law. There are legitimate concerns as to whether the existing administrative procedures established to assess the factual merits of a claim truly do so in all or many cases. Some reservation is expressed as to whether the true factual merits of a claim may be concealed – albeit (hopefully) on rare occasions - by some administrative decision-makers behind a ritual incantation of adverse conclusions based on credit findings: SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253 at [22] to [27]. Where a true assessment of the merits is shrouded in events that took place long ago and in circumstances of true personal trauma, it may be too easy to unearth factual discrepancies and to then rely upon those discrepancies to justify adverse opinions as to credit. Concern may also be expressed as to whether such persons are receiving at the outset competent advice regarding their prospects of success and competent advice as to the best manner in which their claims should be first presented. Whether the appeals that are ultimately filed and determined in this Court best present the available grounds of review for resolution is open to serious question. 15 The resolution of such difficulties may be complex. But they need to be addressed by the Respondent Minister if any assurance is to be provided that those who ultimately seek access to this Court are truly being given "access to justice". 16 The limited number of Judges of this Court available to resolve what may be expected to be an increasing number of applications in the future is but one of the problems. Although that remains a matter of real concern, the difficulty that presently needs to be addressed is how best to ensure that claimants are properly advised and informed of their prospects of success from the outset. The claims of a person seeking refugee status should ideally be comprehensively formulated at the outset so that the factual merits of that claim may be properly presented and assessed. Thereafter, whatever means of judicial review the legislature considers appropriate to fulfil its responsibilities – including its international obligations – is a matter for the legislature to address. 17 Where the existing administrative and judicial processes, however, have exposed repeated and recurring deficiencies, those deficiencies need to be addressed. The "ostrich is a noble animal …": Gonzalez-Servin v Ford Motor Co 662 F3d 931 (7th cir) at 934 (2011) per Posner J. But an "ostrich-like tactic" of pretending that the existing means of review open to a claimant for refugee status is "access to justice" may well be questioned. 18 The best means of exposing the truly meritorious claimants for refugee status may not be easy; but an attempt needs to be made. 19 The unrepresented, it must be recognised, lie victim to the unscrupulous. More so in the past than at present, it has not been uncommon for the unrepresented refugee applicant to advance before this Court purported Grounds of Appeal which have little – if anything – to do with the facts and circumstances of their particular case: SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267 at [11]. Other cases coming before the Court have repeated – very much verbatim – Grounds of Appeal which have been relied upon in other proceedings: A v Minister for Immigration and Multicultural Affairs [1999] FCA 630 at [11] per Emmett J. On many occasions the Grounds of Appeal in this Court vary significantly from the grounds upon which judicial review was sought before the Federal Magistrates Court: eg, SZGWR v Minister for Immigration and Citizenship [2007] FCA 1306 at [7] per Rares J. On those occasions, difficulties are presented by reason of a blurring of the role of this Court as an appellate Court as opposed to a Court of first instance. Whether deficiencies in the formulation of properly drafted Grounds of Appeal – or Grounds of Appeal bearing little resemblance to the manner in which a case was advanced before a Federal Magistrate – is the product of those in detention "pooling their resources" (cf. Justice R D Nicholson, 'Administrative Issues in Refugee Law' (2001) 28 AIAL Forum 40 at 43) or the product of unscrupulous or incompetent advisors providing false hope to the unwary (SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [13] to [16]), it matters not. 20 All litigation inevitably assumes importance to the litigants – and, more broadly, the general community. But the refusal of a claim for refugee status has the potential to affect a claimant in a more immediate way than other litigation. Some claimants, it has been recognised, are "engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. 21 Concern for the unrepresented refugee applicant is nothing new. In Re Refugee Tribunal; Ex Parte HB [2001] HCA 34, 179 ALR 513 at 516, Kirby J thus observed: [13] The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced. These concerns have also been voiced by other Judges of this court: Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 at [5] per Beaumont J; Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 at [6] per Mansfield J. See also: SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [33]. Even earlier, in Barzideh v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 337 at 341, Hill J observed that the court is "… constrained by the legislature to sit idly by while injustice is done". The concern has not gone away: SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [16]. 22 The plight of the unrepresented is not, of course, a concern confined to those administering the Migration Act 1958 (Cth). It is an issue, for example, which frequently also confronts the Family Court: In Marriage of F [2001] FamCA 348 at [242], 161 FLR 189 at 225 per Nicholson CJ, Coleman and O'Ryan JJ. 23 Whilst it may be that the "frequent consequence" of self-representation is that "... the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy" (Neil v Nott (1994) 121 ALR 148 at 150), it nevertheless remains no part of the task of this Court to draft and then proceed to resolve possible Grounds of Appeal on behalf of an unrepresented appellant. The question of what role is to be undertaken by a Court when confronted with an unrepresented party has not provoked a consistent answer: SZJOG v Minister for Immigration and Citizenship [2010] FCA 244 at [16]. 24 The present appeal presents the deficiencies in the existing process of review in stark contrast. It is difficult to know whether a Court is placed in a better position where no Grounds of Appeal have been drafted or where Grounds of Appeal have been drafted, albeit with no reference to the factual or legal issues in need of resolution. Even when the unrepresented appellant appears before this Court with the assistance of an interpreter, the Court invariably receives little assistance from them. More often than not, the unrepresented appellant either asserts or recites the phrase "jurisdictional error" or asserts that the Tribunal was wrong to reject their claims. More often than not, the unrepresented appellant is unable to identify any error – howsoever described – on the part of the Tribunal. The limited role entrusted to this Court by the legislature, it may strongly be suspected, is as foreign a concept to them as the language in which the proceedings are conducted. Even when an unrepresented appellant appears before the Court with the assistance of an interpreter, it may also be strongly suspected that they have no understanding as to what is happening other than that another Court is again looking at their case. 25 Devoid of such understanding, it may well be queried whether – from their perspective – they are being afforded "access to justice". It may also be queried whether some of those who invoke this Court's jurisdiction are in fact seeking "access to justice" – as opposed to further time in which to remain in Australia. Those persons who seek to pursue unmeritorious claims with the sole objective of prolonging their stay in Australia present one set of problems; those persons whose claims may have considerable merit, but are poorly presented and articulated, present another set of problems. 26 Within the constraints in which it functions, the Court should thus be vigilant to ensure that a claim for refugee status has been considered in accordance with law. But the present means of review, it is respectfully considered, place this Court in a difficult position. If "access to justice" is the objective sought to be achieved by the legislature, the ostrich should pull its head out of the sand and look at what is happening around it. If another objective is sought to be achieved, that objective should be identified. The Absence of Error 27 The deficiencies in the means of review, however, should not be visited upon the present Appellant. Nor should her failure to attend the hearing of the appeal stand between her and a proper application of the law to the facts of her case. Little can be done to question how the claim was first made. Whether, with proper advice, a better formulated claim could have been presented is but speculation. 28 Given that constraint, the real and insurmountable difficulty confronted by the present Appellant is that her case – at least as presented – had no factual merit from the outset and thereafter had no legal merit. 29 Before the Refugee Review Tribunal she claimed her husband "… was violent and had bad habits such as smoking, drinking and gambling". She maintained that he "… hits and kicks her; all he wants to do is eat and gamble". More relevantly to a claim for refugee status, she maintained that the officers of a department of the Fuqing City Government responsible for the "appearance" of her town repeatedly threw the clothes in her shop on the floor because she refused or was unable to pay them bribes. There was also a claim that her house was demolished when a road was widened. The true reason for her wish to come to Australia was recorded as being because "… she wanted to escape from China, She wanted to seek shelter so she would not be persecuted by the government or beaten by her husband". Not surprisingly, the Tribunal concluded that she did not have a "well-founded fear of Convention persecution". The Tribunal was not satisfied that "… the harassment by officials, including the closure of her shop, was the result of the targeting of the applicant by those officials for a Convention reason". 30 If the facts as found by the Tribunal be accepted, those facts present little scope thereafter for judicial review. 31 By the time such a claim comes before either the Federal Magistrates Court or this Court, the fate of the claim is most probably sealed. It will in all probability be rejected. The concern is whether a claimant with better advice may have presented a claim having greater prospects of success from the outset. Thereafter a subsequent concern is to ensure that the factual merits of a claim have been properly resolved and not concealed behind available – but potentially ill-founded – findings of credit. After the facts have been found, especially where those findings are based on credit, there is little scope for meaningful judicial review. 32 When such means of merits and legal review are considered against the backdrop of the difficulties confronting an unrepresented applicant for refugee status, the warnings sounded by Kirby J will continue to be repeated. Until they are heeded, the manifest shortcomings in the existing means of review will continue to be a festering sore of discontent. 33 The manner in which the present Tribunal explored the merits of the Appellant's claims, it should be noted, exposed nothing other than a conscientious and balanced account of the facts. 34 The reasons for decision of the Tribunal have been reviewed; as have the reasons for decision of the Federal Magistrate. The Federal Magistrate was correct in the manner in which he resolved the grounds of review advanced before him. No appellable error is discernible in the decision appealed from. Conclusions 35 The appeal is to be dismissed. 36 There is no reason why the normal rule as to costs should not apply such that the Appellant should pay the costs of the Respondent Minister. Those costs should include the costs thrown away by reason of the failure of the Appellant to attend on 8 May 2012. Orders The Orders of the Court are: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the Respondent Minister. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 29 May 2012