FEDERAL COURT OF AUSTRALIA SZSRC v Minister for Immigration and Border Protection [2014] FCA 941 Citation: SZSRC v Minister for Immigration and Border Protection [2014] FCA 941 Appeal from: Application for extension of time: SZSRC v Minister For Immigration & Anor [2014] FCCA 908 Parties: SZSRC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 563 of 2014 Judge: WIGNEY J Date of judgment: 26 August 2014 Catchwords: MIGRATION – Application for extension of time to file appeal pursuant to rule 36.05 – dismissal pursuant to rule 5.23 Legislation: Federal Court Rules 2011 Date of hearing: 26 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Applicant: No appearance Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: The second respondent filed a submitting notice save as to costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 563 of 2014 BETWEEN: SZSRC Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE OF ORDER: 26 AUGUST 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for extension of time to appeal is dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 563 of 2014 BETWEEN: SZSRC Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE: 26 AUGUST 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 In 2012, the applicant, a citizen of India, unsuccessfully applied to the Minister for Immigration and Border Protection (the Minister) for a protection visa. In 2013, he unsuccessfully sought a review of that initial refusal in the Refugee Review Tribunal (the Tribunal). Undeterred by the Tribunal's detailed and well-reasoned affirmation of the decision to refuse his protection visa application, the applicant challenged the Tribunal's decision in the Federal Circuit Court. He alleged jurisdictional error on the part of the Tribunal. He was unsuccessful. The Federal Circuit Court emphatically dismissed his claim as essentially being baseless. 2 The applicant now applies for an extension of time in which to file an appeal against the judgment of the Federal Circuit Court. The extension is required because it was necessary for the applicant to file an appeal within 21 days of the date on which the judgment was handed down by reason of r 36.03 of the Federal Court Rules 2011 (the Rules). The applicant filed the application for an extension 13 days after the expiry of the time limit. 3 For the reasons that follow, the application for an extension of time is dismissed with costs. 4 When the matter was called on for hearing this morning, there was no appearance by the applicant. That was not unexpected. It occurred in the following circumstances. 5 Late yesterday afternoon, the Court received a copy of a letter from the applicant. That letter, whilst addressed to the Court, was apparently sent by facsimile transmission to the Minister's lawyers. The Minister's lawyers then forwarded it to the Court. In the letter, the applicant requested that he be permitted to appear at the hearing of the application by telephone. He nominated a mobile telephone number that he could be contacted on. The basis for that request was that he resided in Griffith and that he was not working at present and could not afford the travel costs to Sydney. The letter was forwarded to the Court by the Minister's lawyers at about 4.15pm. 6 When that letter was brought to my attention, I directed the Court's registry to immediately contact the applicant and advise him that, due to the lateness of his request and the complications involved in hearing the matter by telephone, given the need for a Punjabi interpreter, his request was denied. I was subsequently advised that the registry had attempted to telephone the applicant at the nominated telephone number. Those phone calls were not answered. Apparently a further attempt was made to contact the applicant on another mobile telephone number that the applicant apparently used at the Federal Circuit Court stage. That attempt was also unsuccessful. The registry then sent a text message to the nominated telephone number, advising the applicant that he would need to attend court in Sydney for the hearing. No response was received to that text message. 7 When there was no appearance this morning, the Minister's representative indicated that the Minister had no objection to the hearing proceeding by way of telephone if the applicant was able to be contacted. My associate then rang the nominated telephone number again whilst in Court. That attempt was unsuccessful. There was no answer. The phone rang out. 8 This matter was set down for hearing some considerable time ago. On 10 June 2014, a Registrar directed that the application be listed for hearing during the August Full Court sittings. The applicant did not then apply to have the matter heard by telephone. There has been no explanation for why the applicant left that request until the very last minute. It is unacceptable for the applicant to make such a request on the eve of the hearing without any prior consultation with the Minister's lawyers. The mere fact that the applicant resides some distance from Sydney, without more, does not necessarily justify an appearance by way of telephone. That is particularly the case where an interpreter is required. It is equally unacceptable that the applicant was unable to be contacted at all on his nominated mobile number, particularly in circumstances where the final sentence of the applicant's communication was: Would you kindly let me have your response regarding the telephone hearing. 9 It should also be noted that on 10 June 2014, the Registrar also directed the applicant to file an outline of submissions no later than 10 days before the hearing. The applicant did not comply with that direction. No submissions have been filed by the applicant. 10 Rule 5.22 of the Rules provides that a party is in default if the party, inter alia, fails to do an act required to be done or fails to attend a hearing in the proceeding. Rule 5.23(1) provides that, if an applicant is in default, a respondent may apply to the Court for an order, inter alia, that the proceeding be dismissed. Following the applicant's non-appearance this morning, either in person or by telephone, the Minister, who is a respondent to the application, applied for an order that the application be dismissed pursuant to r 5.23. 11 The applicant is in default because he failed to file written submissions and failed to appear at the hearing. For the reasons already given, his non-appearance, whilst explained in the correspondence, is in all the circumstances unacceptable. There is no explanation for his failure to file written submissions. 12 Whilst it may be accepted that an unrepresented applicant from a foreign country who is apparently unable to speak English may face difficulties in preparing any sort of written submissions, there is no explanation for why he has not complied with that direction. The applicant has apparently been able to prepare and file an application, a draft notice of appeal and an affidavit in purported compliance with r 36.05(3) of the Rules. It is apparent from what occurred in the court below that the applicant has had, at least in the past, assistance in preparing such documentation. 13 In considering whether it is, in all the circumstances, appropriate to dismiss the application because the applicant is in default and, in particular, because he has failed to appear at the hearing this morning and failed to answer his telephone, I have had some regard to the merits of the application. I have closely considered the Tribunal's decision and reasons, the judgment of the primary judge, the draft notice of appeal and the applicant's affidavit in support of his application for an extension of time. This consideration has revealed that, at least on the papers, the application has no merit. That is so for a number of reasons. 14 First, the applicant's affidavit does not comply with r 36.05(3). It provides no explanation for why the notice of appeal was not filed within time. Nor does it state, briefly but specifically, the facts on which the application relies. It does no more than make bald and unparticularised assertions of error on the part of the Federal Circuit Court and the Tribunal. 15 Second, the draft notice of appeal does no more than recite some form of "boilerplate" error on the part of the Tribunal and the Federal Circuit Court. No meaningful particulars of the supposed error or errors are provided. The supposed grounds appear to bear no relationship to the Tribunal's reasons and the Federal Circuit Court's judgment. 16 Third, a close reading of the Tribunal's reasons does not reveal any arguable case of jurisdictional error on the part of the Tribunal. The Tribunal found that the applicant was not a witness of truth and rejected virtually all of the evidence that the applicant gave in support of his visa application. The Tribunal summarised its findings (at paragraph [100] of its reasons) in the following terms: The Tribunal does not accept that the applicant is a witness of truth and finds that he has given vague, changing, implausible, and inconsistent evidence in relation to matters central to his claims, throughout the process. The Tribunal considers that he has fabricated his claims, and his responses to the Tribunal's concerns, in order to remain in Australia, and that his claims (and responses) are not true. The Tribunal's reasoning for these findings is as follows: The Tribunal then provided a detailed, logical and highly persuasive explanation for its finding that the applicant was not a witness of truth. 17 Fourth, a close reading of the judgment of the primary judge reveals that, again, at least based on the papers, the primary judge was plainly correct to dismiss each of the four vague and unparticularised grounds that the applicant relied on to challenge the Tribunal's decision and reasons. The primary judge also appeared to be plainly correct to reject the vague and generalised assertions of error that the applicant apparently pointed to in his oral submissions. There is no obvious or apparent error in the primary judge's reasons. As earlier indicated, the draft notice of appeal does not assist in any way in describing or pointing to any error on the part of the primary judge. Nor have any written submissions been filed. 18 In all the circumstances, it is appropriate to dismiss the matter under r 5.23 by reason of the applicant's defaults. I do not consider that it is appropriate to put the Minister to the further trouble and expense of appearing at an adjourned hearing. The Minister is unlikely to ever recover the costs thrown away as a result of the applicant's default in appearance today. Nor do I consider that it is appropriate for the Court's time and resources to be further wasted in dealing with what is an apparently hopeless application that has not been prosecuted in accordance with the Court's directions or with any sort of diligence. 19 The application is accordingly dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 1 September 2014