SZSGD v Minister for Immigration and Border Protection

[2013] FCA 1277

FEDERAL COURT OF AUSTRALIA

SZSGD v Minister for Immigration and Border Protection

[2013] FCA 1277

Citation:	SZSGD v Minister for Immigration and Border Protection [2013] FCA 1277
Appeal from:	SZSGD v Minister for Immigration & Citizenship (No 1) [2013] FCCA 714 SZSGD v Minister for Immigration & Citizenship (No 2) [2013] FCCA 715
Parties:	SZSGD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1686 of 2013
Judge:	RARES J
Date of judgment:	21 November 2013
Cases cited:	Bienstein v Bienstein (2003) 195 ALR 225 applied Jackamarra v Krakouer (1998) 195 CLR 516 applied Reg v Secretary of State for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 applied
Date of hearing:	21 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	24
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	Filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1686 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSGD
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	21 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal be dismissed.

2.The applicant pay the first respondent's costs.

3.The name of the first respondent be changed to “Minister for Immigration and Boarder Protection”.

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 1686 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZSGD
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	21 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. The applicant filed an application for an extension of time and leave to appeal in this Court on 20 August 2013, seeking to challenge two decisions made by the Federal Circuit Court on 26 June 2013:  SZSGD v Minister for Immigration & Citizenship (No 1) [2013] FCCA 714 and SZSGD v Minister for Immigration & Citizenship (No 2) [2013] FCCA 715. The proceedings before the Federal Circuit Court

   The proceedings before the Federal Circuit Court

2. The circumstances of the proceedings before the Federal Circuit Court were that on 22 February 2013 the matter had been listed for hearing before the trial judge, Judge Emmett, on 26 June 2013 at 10.15 am.  Earlier on 22 February 2013, her Honour had made directions as to the conduct of the proceedings.  Those included a grant of leave to the applicant to file and serve an amended application giving complete particulars of each ground of review on which he relied by 12 April 2013, and a direction for him to file and serve any evidence by way of affidavits, including any transcript of the Tribunal hearing, by that day.  He was also required to file and serve written submissions in support of his application 14 days before the hearing and he appears to have done so on 11 June 2013.

3. The location of the court room in which her Honour was to hear the application apparently changed between 22 February and 26 June 2013.  Her Honour had before her, when the matter was called on at 10.15 am the morning of 26 June 2013, a letter sent to the applicant by the solicitor for the Minister dated 18 June 2013 annexing the Minister’s submissions.  The letter informed the applicant again that the matter was listed before her Honour at 10.15 am on 26 June 2013 and providing the correct location of the court room actually used on that day for the hearing.

4. The applicant not having appeared at 10.15 am when the hearing had been fixed, her Honour proceeded to give the first of the two judgments.  In that judgment, she noted that the grounds of the application made bare assertions that were unsupported by particulars, evidence or submissions and did not disclose an error capable of review by the Court.  She dismissed the application with costs by reason of the applicant’s failure to appear at the scheduled hearing.

5. Later in the day, the applicant arrived at the Court and filed an application seeking that her Honour set aside the default judgment and proceed with the hearing.  Her Honour reconvened and heard that application.  She explained to the applicant that two issues she had to be satisfied about were the reasonableness of his explanation of having failed to appear earlier in the day and whether, if that explanation was satisfactory, his substantive case had sufficient prospects of success so that it would be in the interests of justice for her Honour to set aside the earlier ex parte order dismissing the proceedings.

6. Her Honour noted that the applicant informed her that he had not received the Minister’s solicitor’s letter of 18 June 2013 but, despite it being sent to his correct address, he had been unable to provide her with any explanation as to why not.  She said that, in any event, it was the applicant’s responsibility, as a party, to ensure that he knew the location of the court room.  She considered that his explanation for his earlier failure to appear was not satisfactory.

7. Her Honour then considered the grounds of the application for review of the decision of the Refugee Review Tribunal affirming the delegate’s decision not to grant the applicant a protection visa given on 24 October 2012.  Those grounds were:

   “1.The member of RRT has made a decision mostly based on his opinion than facts.

   4.RRT member failed to identify the genuineness of my claims for protection.

   5.RRT interview conducted with the interpreter could not interpret what I have said correctly.”

8. Her Honour said that the applicant had submitted to her, in support of the first two grounds, that the Tribunal had not accepted his claims, did not believe him and was prejudiced against him.  She held, correctly, in my opinion, that those grounds did not demonstrate a jurisdictional error by the Tribunal but invited the court to undertake a merits review, which was not permissible.  Her Honour observed that to the extent that the applicant was complaining that the Tribunal had been prejudiced against him amounted to an allegation of bias, it raised a serious matter and required clear evidence.  She said that such evidence could include, in the ordinary course, a transcript of the Tribunal’s hearing and that it would be very difficult simply to find bias by considering the published reasons of the Tribunal alone.  She recorded that the mere fact that the Tribunal had made adverse findings in respect of the applicant did not, of itself, give rise to an inference of bias or suggest that the decision maker approached its task with a mind that was not open to persuasion.  Again, in my opinion, I cannot see any error in her Honour’s consideration of that matter.  She was correct.

9. Her Honour said that she had given the applicant an opportunity to file evidence including any transcript of the Tribunal hearing but that, for whatever reason, he had chosen not to file any document in support of an allegation that the Tribunal was prejudiced against him.  Her Honour recognised that because she was engaged at that point in an interlocutory application, she was not making a final determination.  However, she observed that a fair reading of the Tribunal’s decision record did not suggest any prejudgment on its part or that it had approached its task with a mind that was not open to persuasion.  Her Honour found that the applicant had not identified any evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, matters and issues, and of the conduct of the Tribunal, might reasonably apprehend that it might not have brought an impartial mind to determining his application for review.  Accordingly, she concluded that there was no reasonable prospect of success on a ground of review that sought to raise an allegation of bias or prejudgment.  In my opinion, that reasoning was correct.

10. Her Honour dealt with the third ground of the substantive application as being a complaint about the quality of interpretation at the Tribunal hearing.  She said that in order to amount to a jurisdictional error, the deficiency of interpretation had to be of such a kind that its poor quality effectively deprived the applicant of his right to appear.  She found that he had provided no particulars or relevant submissions in support of the allegation and that it plainly required evidence.  Accordingly, she found that, without such evidence, the allegation had no, or no reasonable, prospects of success.  Again, in my opinion, her Honour was correct in making that finding.

11. For those reasons, her Honour concluded that the applicant had not identified any arguable claim for the relief sought in his substantive application and that, for those reasons, it would not be in the interests of justice to set aside the summary dismissal order that her Honour had made earlier that day.  She then dismissed the application.

    The present application

12. The appellant’s application for leave to appeal was filed nearly four weeks later than it should have been.  He explained that he thought that he had 28, rather than 14, days to file his appeal documents.  That may be an understandable mistake by a litigant in person where the nature of the dismissal by her Honour happened to be interlocutory on this occasion and brought about a requirement that the applicant needed leave to appeal from the Federal Circuit Court’s two decisions.

13. The applicant recited in his application that he had been suffering from pneumonia between 15 July and 5 August 2013 and set out that he had difficulty breathing.  He asserted that he had tried to submit his application on 6 July 2013 but was told it was on the wrong form and he had to fill in a new one and pay a filing fee, where it was difficult for him to find the money to do so.  The applicant’s affidavit in support of his application, dated 13 August 2013, asserted that he had been suffering from pneumonia for the previous two weeks and thought he had 28 working days to apply, rather than 28 days, including Saturdays and Sundays.

14. The draft notice of appeal raised two grounds, essentially being that, first, the applicant had gone to the wrong courtroom on 26 June 2013 and was late getting to the one where the hearing was actually held, and secondly, it was unfair that the initial proceedings were dismissed.  He sought to have the initial dismissal order set aside.

15. The applicant’s evidence before me was bereft of any medical evidence in support of his application for an extension of time.  This was despite his having been sent directions twice by the registry identifying what he needed to do in preparation for today’s hearing.  On 21 August 2013, the Court’s registry sent the applicant notice that his application would be heard during the current Full Court hearings and attached directions regarding the filing and preparation of written submissions and other matters relating to the hearing.  On 25 September 2013, the applicant was sent a further letter by the registry informing him that the application would be heard today and that he should refer to the directions made by the deputy district registrar on 21 August 2013 regarding a draft notice of appeal, written submissions and other matters relating to the hearing.  He was also provided with practice notes CM2 and CM4 and a guide to preparation of submissions in the Court.  The letter told him that the date fixed for the hearing could only be changed by directions of the Court, and that he would be required to pay a setting down fee. 

16. Despite all that, the applicant this morning told me that he thought that he would get some directions from the Court today about preparing the matter for hearing on a later occasion, including directions as to the filing of evidence and that he would have more time.  As the Minister submitted, this is not an adequate explanation of the lack of material for what the applicant asserts is a serious case in which he claims to have been done an injustice.  He said he had his medical certificate at home and did not think he needed to bring it today, three months after he filed his application seeking to rely on a medical condition for which he gave no medical evidence as being an excuse for his filing proceedings out of time.  He also said that he had, at home, the transcript of the hearing before the Tribunal but that he had not yet provided it to anyone, including the Court below or this Court.  When I raised with him that the judge had given directions on 22 February 2013 that he file an affidavit attaching any transcript before the Tribunal by 12 April 2013 and, according to him, he had it at home but had not done so, he said that that was fair enough but that the Tribunal had based its decision on its own opinion of matters.  The latter remark is true, because it was the Tribunal’s function to do so.

    Background to merits

17. The applicant is a Sinhalese who claimed a fear of persecution by reason of an imputed political opinion as a result of assistance he claimed that he gave to the Liberation Tigers of Tamil Eelam (LTTE) during Sri Lanka’s civil war and internal conflict.  It is fair to say that the Tribunal did not accept the applicant’s evidence as plausible.  It also found he was not credible.  On that basis it found that there was no real chance that he would suffer serious harm by reason of any imputed political opinion as a supporter of the LTTE or any other Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.  It also found that Australia had no complementary protection obligations towards him and dismissed his application.

    The applicant’s submissions

18. The applicant repeated in substance the arguments that he had put to her Honour about the merits of his underlying substantive application to review the decision of the Tribunal and have it set aside.  He argued that there were mistakes by the interpreter when interpreting.  I should note that whatever those mistakes might be, the Tribunal, as the Minister pointed out in submissions, recorded that the applicant had very good English but nonetheless it had required the proceedings to be conducted with the aid of an interpreter.  Thus, the applicant, to the extent that he understood English, had the benefit of hearing the English and Sinhalese versions of events both direct through hearing the Tribunal member and also the interpreter’s translation.  The applicant said that he sought an extension of time so that he could show mistakes in the hearing before her Honour and the Tribunal.  He accepted that he had been at fault for not preparing for the hearing today because he thought that he would get more time.

    Consideration

19. I do not accept the applicant’s explanation that he thought he would get more time to prepare his case after today.  He had received the two letters from the registry identifying today as the hearing day and he also received the Minister’s outline of submissions dated 13 November 2013 that comprehensively discussed the issues raised by the present application.

20. The principles upon which the Courts considers an application for an extension of time are well settled.  Here, the Minister has a vested right to retain the benefit of the judgment of the Federal Circuit Court.  The grant of an application for an extension of time would put that vested right at risk.  The Courts have held that where that position arises it is usually appropriate to consider the merits of the substantive case which the applicant for the extension of time seeks to raise.  If such a case appears to be strong on the merits and one which ought to be heard in fairness to the parties, the Court might think it proper to allow it to proceed and to extend the time so that can be done.  However, as Lord Denning MR said in Reg v Secretary of State for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 at 1091, in a passage approved by Brennan CJ and McHugh J, together with Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] and 540 [66(4)]:

    “If it appears to be a flimsy case and weak on the merits, we may not extend the time.  We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”

21. The principles upon which a grant of leave to appeal are made are also well settled.  An applicant for leave to appeal must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from the refusal of such leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

22. I am of opinion that the application for an extension of time is entirely without merit and that the underlying application for leave to appeal is likewise without merit.  The grounds upon which the application for an extension of time have been advanced are unsupported by any medical evidence.  While it is understandable that litigants who are self-represented may be confused about time periods in which they may seek to bring proceedings in courts to challenge adverse decisions, they do have an interest to ensure that they get such matters right.  The applicant asserted that he had a medical certificate at home but gave no explanation as to why he had not brought that to court today in support of what, for him, must be a very important case.  Allowing for the fact that he may have been sick for some of the period in which there has been a delay, the delay of 26 days past the time which the applicant had to bring an application of right has not been satisfactorily explained.

23. Moreover, the substantive case which the applicant seeks to bring would have depended on, among other things, a transcript of the hearing before the Tribunal, which the applicant said he had but never explained why he had not filed as evidence in accordance with her Honour's directions of 22 February 2013.  The grounds on which he seeks to rely, had an application for leave to appeal been successful for the appeal to be allowed and sent back to the Federal Circuit Court on the material before me, could not possibly succeed.  Her Honour correctly assessed them as having no substance.  Accordingly, it would not be in the interests of justice to grant an extension of time in which the applicant could seek leave to appeal from her Honour's decisions to dismiss his case, for default of appearance, and then to refuse to set that decision aside when he subsequently appeared later that day.

    Conclusion

24. I am of opinion that the application must be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       27 November 2013