SZSFH and Anor v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 65

[2014] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S298 of 2013

B e t w e e n -

SZSFH

First Applicant

SZSFI

Second Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 31 MARCH 2014, AT 10.26 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN:   If your Honour pleases, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

HER HONOUR:   Mr Lenehan, do you know if the applicant is present?

MR LENEHAN:   I do not, your Honour.

HER HONOUR:   Perhaps I might have the applicant called.  Madam Interpreter, I wonder if you would just assist by going outside ‑ ‑ ‑

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Thank you very much. 

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Mr Lenehan, there is a further matter in the list.  Would it cause you difficulty if I stood this matter down just in case the applicant is running a little late?

MR LENEHAN:   None at all, your Honour.

BELL J:   Thank you, Mr Lenehan. 

AT 10.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

HER HONOUR:   Mr Lenehan, as I understand it, the second respondent has filed a submitting appearance.

MR LENEHAN:   Yes, your Honour, that is correct.

HER HONOUR:   Mr Lenehan, you have filed submissions on the Minister’s behalf opposing the making of the orders that are sought.

MR LENEHAN:   I have, your Honour.  They are dated 25 March 2014.

HER HONOUR:   Yes.  Thank you for those.  Mr Lenehan, there are two applicants.  They are seeking reinstatement of their application for special leave to appeal which was deemed abandoned on 13 January 2014.

MR LENEHAN:   That is so, your Honour.

HER HONOUR:   Now, am I right in thinking it is the first applicant who has sworn an affidavit in support of the relief claimed in the summons?

MR LENEHAN:   Your Honour, I believe it is in fact the second applicant.

HER HONOUR:   I see.  So that, just so I understand, the second applicant is the de facto spouse of the first who makes the protection claims.  Is that right?

MR LENEHAN:   That is as I understand it, your Honour, yes.

HER HONOUR:   Yes.  Do you have any objection to any part of the affidavit sworn by the second applicant on 24 January 2014.

MR LENEHAN:   I do not, your Honour, and perhaps – it is unusual, perhaps I should read that affidavit, your Honour.

HER HONOUR:   Yes, thank you, I will take that as read. Now, do I understand that the Minister takes, as it were, a neutral stance respecting whether the matters in the affidavit constitute an acceptable explanation for the failure to comply with the Rules?

MR LENEHAN:   That is so, your Honour.

HER HONOUR:   The Minister does not assert any prejudice in the event the application were to be reinstated?

MR LENEHAN:   No, your Honour, the Minister does not.

HER HONOUR:   The Minister relies on the futility of reinstatement.

MR LENEHAN:   That is correct, your Honour, and the interests of justice.

HER HONOUR:   Yes.  I do not think I need to hear from you.  Thank you, Mr Lenehan, your submissions are helpful.

MR LENEHAN:   Thank you, your Honour.

HER HONOUR:   The applicants applied by summons filed on 24 January 2014 for an order reinstating their application for special leave to appeal. The application was filed on 16 December 2013. The applicants were unrepresented in their special leave application which falls to be dealt with under rule 41.10 of the High Court Rules 2004 (Cth) (“the Rules”). The applicants were required to file their written case on or before 13 January 2014 by virtue of rule 41.10.3(c) which requires, in the case of an unrepresented applicant, that the written case be filed within 28 days of the filing of the special leave application.

The Minister opposes the making of the orders sought.  The applicants have failed to attend on the hearing of their application.  The Minister points to the statement of the principles respecting the determination of an order for reinstatement stated by Justice Heydon in SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs[1]. His Honour identified two matters which the applicant is required to demonstrate in order to obtain the order: first, that there is an acceptable explanation for the failure to comply with the Rules; secondly, that in all the circumstances, the interests of justice require the application to be reinstated.

[1] [2006] HCATrans 352.

The second applicant swore an affidavit on 24 January 2004 in support of the relief claimed in their summons. The Minister did not object to the affidavit on the hearing. The Minister takes a neutral stance with respect to whether the circumstances described in the affidavit provide an acceptable explanation for the failure to comply with the Rules. The second applicant’s account in this respect in his affidavit is spare. He states that the first applicant is 38 weeks pregnant. Secondly, “I was late in receiving the letter asking me to file some documents by the date required”. Thirdly, “our English is poor and couldn’t find anybody to help us during the Christmas and New Year’s Holiday”.

The Minister’s opposition to reinstatement is based on the claimed futility of the application.  The Minister submits that the interests of justice, taking into account the interests of other litigants in the efficient conduct of the Court’s business, do not favour the grant of an indulgence in the case of an application which, on its face, is without merit. 

The applicants are de facto spouses and both are citizens of the People’s Republic of China.  The first applicant arrived in Australia in November 2007 as the holder of a student visa.  In October 2011, a delegate of the Minister refused the applicants’ protection visa applications. 

In summary, the first applicant claimed that her family in China owned a restaurant that had been compulsorily acquired by the Chinese Government in 2011.  Thereafter, she and her family were said to have organised and participated in anti‑government protests, leading to the detention of the first applicant’s parents for a period.  The first applicant claims to have posted anti‑government information on a website and, as a result of her actions, to fear persecution in China.

A delegate of the Minister refused the protection visa applications in October 2011.  The applicants applied to the Refugee Review Tribunal for a review of the delegate’s determination.  The Tribunal affirmed the delegate’s determination, making adverse credibility findings respecting the first applicant based on inconsistencies between her written claims and her evidence. 

An application for judicial review of the Tribunal’s determination was dismissed by Judge Raphael in the Federal Circuit Court on 27 August 2013.  Justice Wigney of the Federal Court of Australia dismissed an appeal from the decision of the Federal Circuit Court on 20 November 2013.  His Honour characterised the grounds of appeal as asserting “broad and sweeping contentions of error” and that they were “bereft of any meaningful particulars”[2].  His Honour considered that the applicants were under the misconception that the proceedings in the Federal Circuit Court and on appeal allowed of a review of the merits of their applications.

[2] SZSFH v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 1256 at [14].

The application for special leave to appeal is based on the same three broad, unparticularised grounds that were rejected by Justice Wigney, together with a fourth ground which asserts “Federal Court failed to correct above errors”.  There is no reason to doubt the correctness of Justice Wigney’s conclusion that nothing capable of amounting to jurisdictional error was articulated before him.[3]

[3] SZSFH v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 1256 at [16].

I am mindful that an application for special leave to appeal filed by an unrepresented applicant is generally considered on the papers by a Full Court constituted by two Justices before a determination might be made to dismiss it[4]. I am prepared to accept that the difficulty of obtaining assistance over the Christmas and New Year holiday period is some explanation for the applicants’ failure to comply with the Rules. I also accept that the applicants moved with reasonable expedition to bring on the present application. Nonetheless, in circumstances in which the proposed grounds of challenge do not identify an arguable basis for overturning the decision of the Federal Court, and in which the applicants have failed to attend the hearing and advance any further arguments in support of the relief claimed, I am not persuaded that it is in the interests of justice to reinstate the application. For these reasons the summons is dismissed with costs.

[4] High Court Rules 2004 (Cth), r 41.10.5.

Thank you, Mr Lenehan.

AT 10.44 AM THE MATTER WAS CONCLUDED