SZASL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 398

FEDERAL COURT OF AUSTRALIA

SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 398

MIGRATION – application for reinstatement of proceedings – no appearance by appellant at hearing – whether reasonable excuse for non-attendance – whether error of law disclosed by the papers – delay in bringing proceedings for reinstatement

Federal Court Rules O 52 r 38A

Prashar and Ors v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197 applied

SZASL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1545 of 2004

COWDROY J
5 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1545 OF 2004

BETWEEN:

SZASL
APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

Cowdroy J

DATE OF ORDER:

5 April 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion be dismissed.

2.        The appellant pay the respondent’s costs of the notice of motion.

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 1545 OF 2004

BETWEEN:

SZASL
APPELLANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	Cowdroy J
DATE:	5 April 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed on 23 February 2006, pursuant to O 52 r 38A(2) of the Federal Court Rules, the appellant seeks to set aside judgment made by this Court on 13 December 2004 dismissing his appeal from a decision of the Federal Magistrates Court.

2. The appellant is a citizen of Bangladesh who made application to the Department of Immigration and Multicultural Affairs for a protection visa pursuant to the Migration Act 1958 (Cth). On 26 May 1997 a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the appellant’s application. On 23 June 1997 the appellant sought a review of that decision in the Refugee Review Tribunal (‘RRT’). On 31 August 1998 the RRT affirmed the decision not to grant a protection visa.

3. In June 2003, the appellant appealed to the Federal Magistrates Court for a review of the decision of the RRT. The delay in applying for a review in the Federal Magistrates Court was the result of his participation in class action proceedings: see Muin v Refugee Review Tribunal (2002) 190 ALR 601.

4. On 18 August 2004 Lloyd-Jones FM delivered judgment dismissing the appellant’s appeal and ordering the appellant to pay the Minister’s costs in the amount of $4,500.

5. By notice of appeal filed on 22 October 2004 the appellant then appealed to this Court against the decision of Lloyd-Jones FM. A directions hearing took place on 19 November 2004 before Hely J which was attended by the appellant. Directions were made for the filing and service of submissions by the appellant and the proceedings were listed for hearing on 13 December 2004 before Hely J. By letter dated 22 November 2004 the Minister’s solicitors reminded the appellant of the date fixed for hearing and stressed the importance of his attendance.

6. The appellant did not file submissions and did not appear at the hearing on 13 December 2004. No prior indication had been given to the Minister that the appellant would be prevented from attending the hearing. At the request of the Court, the solicitors for the Minister telephoned the appellant, who indicated that he was aware of the Court proceedings but that he was in bed with a severe pain in his shoulder. He said that he had not contacted the Court because he had taken a painkiller and fallen asleep.

7. Pursuant to O 52 r 38A(1)(d) of the Federal Court Rules, Hely J decided to proceed with the hearing on 13 December 2004 in the absence of the appellant. His Honour decided to proceed because he regarded the explanation for appellant’s non-attendance as inadequate, and because he considered an adjournment would be futile since the papers did not demonstrate any legal, factual or discretionary error by Lloyd-Jones FM. His Honour dismissed the appeal with costs, noting that O 52 r 38A(2) empowered the Court to set aside or vary the Court’s orders on a later application by the appellant.

8. By the present notice of motion, the appellant asks the Court to set aside Hely J’s decision. The motion is supported by an affidavit sworn by the appellant on 23 February 2006. The Minister opposes the motion and relies upon an affidavit of Ben Cramer sworn 5 April 2006 which was filed with the leave of the Court during the hearing today.

9. The appellant’s affidavit states that he was unwell on 13 December 2004 but does not provide medical documentation to corroborate this assertion. He explains that he did not file submissions as directed prior to that hearing because he was attempting to raise finance to seek legal advice. He states that had he attended Court, he would have sought an adjournment, as he indicated to the Minister’s solicitor in his telephone conversation on that day.

10. With regard to the delay in filing the present motion, the appellant says that he has been constrained by virtue of his detention at Villawood Immigration Detention Centre.

11. The appellant stated orally that he needed more time to prepare his appeal and in particular needed access to his home in Kensington where relevant documents were located. However, the appellant could not identify the basis on which such documents would have relevance in the present appeal, which is not a merits appeal.

    FINDINGS

12. O 52 r 38A(2) of the Federal Court Rules does not set out principles to guide the exercise of the Court’s discretion under that subrule. However, in Prashar and Ors v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197 the Full Court of the Federal Court of Australia provided guidance concerning its application. Katz J said (at 199):

    ‘… the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party’s absence when the appeal was called on for hearing and the strength of that party’s case on the appeal if the order dismissing the appeal were to be set aside.’

13. The evidence adduced by the appellant does not provide a satisfactory explanation for his non-attendance before the Court on 13 December 2004. Although the appellant says in his affidavit that he did not realise the seriousness of non-attendance at the Court, there is evidence that a letter was forwarded to him on 22 November 2004 by the solicitors for the Minister which reminded the appellant of the importance of his attendance.

14. In addition, this notice of motion was filed in February 2006, 14 months after the decision of Hely J. The appellant stated that this delay was due to the constraints imposed by his immigration detention. However, the Court notes that the appellant was not detained until 18 November 2005, eleven months after Hely J’s decision. The appellant does not seem to have made any attempt to set aside Hely J’s decision prior to this date.

15. Further, Hely J determined that there was no material before him to show that the Federal Magistrate’s decision contained a legal, factual or discretionary error. I have read the decision of the RRT and of the Federal Magistrate and the notice of appeal to this Court and I concur with Hely J. The appellant has not provided any further information or evidence which persuades me to set aside the decision of Hely J.  In these circumstances, the appellant’s notice of motion should be dismissed.

    ORDERS

16. Accordingly, the Court orders that:

    1.The notice of motion be dismissed.

    2.The appellant pay the respondent’s costs of the notice of motion.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:             10 April 2006

Counsel for the Applicant:	The appellant appeared in person with the assistance of an interpreter.
Solicitor for the Applicant:
Counsel for the Respondent:	B Cramer (solicitor)
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 April 2006
Date of Judgment:	5 April 2006