SZSJN v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 66

[2014] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S307 of 2013

B e t w e e n -

SZSJN

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 10.27 AM

Copyright in the High Court of Australia

MR R.J. BAIRD:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   Thank you, Mr Baird.  Mr Baird, do you know if the applicant is present?

MR BAIRD:   No, your Honour, I do not.

HER HONOUR:   Perhaps, Madam Interpreter, I wonder can you assist the Registrar and if we could call the matter outside the Court.  Thank you.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Madam Interpreter, I wonder if you would mind just waiting in the back of the Court for a few minutes in case either applicant does arrive.  As I understand it, each might require the services ‑ ‑ ‑

THE INTERPRETER:   Okay.

HER HONOUR:   ‑ ‑ ‑ of an interpreter.  Would you mind - just for a few minutes, Madam Interpreter?

THE INTERPRETER:   Sure.

HER HONOUR:   Thank you.  I note that it is 10.30 and that each of the matters, SZSFH and SZSJN, were listed for hearing at 10.00 am. In the circumstances, I propose to proceed with determining the applications. Mr Baird, I think as a matter of fairness I should return to Mr Lenehan’s matter.

MR BAIRD:   Yes, your Honour.

HER HONOUR:   Thank you. 

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

HER HONOUR:   Thank you, Mr Baird.  Mr Registrar, I will just have you call that matter one more time. 

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Yes, Mr Baird.

MR BAIRD:   Your Honour, the Minister opposes the reinstatement of the special leave application on the sole ground that reinstatement would be futile. 

HER HONOUR:   Yes.

MR BAIRD:   I do not claim any prejudice on the Minister’s part, nor do I take issue with the applicant’s explanation that she was recovering from surgery in December and January.  That is in an affidavit she filed with her summons.

HER HONOUR:   Yes, that is the affidavit affirmed on 29 January 2014.

MR BAIRD:   Yes, your Honour, I have no difficulty with that affidavit being read. 

HER HONOUR:   Thank you, Mr Baird.  Yes, well, Mr Baird, I have read the decision below.  I understand the basis of your opposition.  I do not need to hear from you. 

MR BAIRD:   As your Honour pleases. 

HER HONOUR:   I note there has been a submitting appearance by the second respondent.

The applicant, by summons filed on 29 January 2014, seeks an order reinstating her application for special leave to appeal. The applicant was unrepresented in her application for special leave and the application fell to be dealt with under rule 41.10 of the High Court Rules 2004 (Cth) (“the Rules”). The application was filed on 20 December 2013. The applicant was required to file her written case within 28 days of that date[1].  This required that the written case be filed on or before 17 January 2001.  The applicant failed to comply with the rule and her application was deemed to have been abandoned. 

[1] High Court Rules 2004 (Cth), r 41.10.3(c).

The applicant has failed to attend the Court today on the hearing of her summons. The Minister for Immigration and Border Protection, the first respondent, opposes reinstatement of the application. The Minister did not object, on the hearing, to the applicant’s affidavit, affirmed on 29 January 2014, in which the applicant offers an explanation for her non‑compliance with the Rules, namely, that she was suffering a severe medical condition. Exhibited to the affidavit is a pathology report which shows that at a time shortly before the filing of the special leave application the applicant had undergone a cervical biopsy. The affidavit is silent on the consequences of that finding to her capacity to comply with the Rules, but the Minister takes no point in this respect. The Minister’s opposition is entirely based on a consideration of the interests of justice which he submits do not favour extending to the applicant the indulgence that she seeks because reinstatement would be futile.

The applicant is a citizen of the People’s Republic of China.  In March 2012, she applied to the Department of Immigration and Citizenship for a protection visa.  In June 2012, a delegate of the Minister determined to refuse the application.  The applicant’s claims to engage Australia’s protection obligations were based on her fear of harm at the hands of the Chinese Government because of her repeated complaints about the adequacy of the medical treatment given to her partner.  She claimed to have been twice detained in China in 2011 in this connection.

In July 2012 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s determination.  The Tribunal notified the applicant that on the material before it, it was unable to make a favourable decision.  The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues on the review.  The applicant did not attend the hearing.

In November 2012 the Tribunal affirmed the decision of the delegate.  In so doing, the Tribunal observed that the application was lacking in detail and that the applicant’s failure to appear at the hearing left the Tribunal unable “to question the applicant as to the veracity of her claim, leaving her claims unclarified and the Tribunal’s questions unanswered”.

An application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court on 1 August 2013.  The applicant appealed to the Federal Court of Australia.  She asserted that the Tribunal had not accorded her procedural fairness by proceeding to determine the review without a hearing and by its failure to “consider the alternative consequence if I were to be returned to my country”[2]. Justice Cowdroy affirmed the decision of the court that the Tribunal’s discretion under section 426A(1) of the Migration Act 1958 (Cth) to proceed with the hearing despite the applicant’s absence was not tainted by jurisdictional error. The second ground of appeal had not been agitated before the Federal Circuit Court. Justice Cowdroy concluded that it was without merit.

[2] SZSJN v Minister for Immigration and Border Protection [2013] FCA 1241 at [7].

The application for special leave to appeal is brought on four grounds:  1. “RRT breached the procedural fairness.  2. RRT made jurisdictional error by not giving me a chance to appear.  3. RRT didn’t give me opportunity to present my arguments.  4. Federal Court failed to correct the above errors.”  Each of the unparticularised grounds are different ways of challenging the Tribunal’s decision to determine the review without taking further action to allow or enable the applicant to appear before it.  The applicant does not assert that she was not notified of the date of the hearing before the Tribunal.

There is no reason to doubt the correctness of the decision below.  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.[3]  However, in circumstances in which I am satisfied that the application does not identify an arguable basis of challenge to the decision of the Federal Court, and in which the applicant has not attended to advance any additional reason for granting her the relief that she claims, I do not find that it is in the interests of justice to make the order sought.  The summons is dismissed with costs. 

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

Thank you, Mr Baird.

MR BAIRD:   May it please the Court.

AT 10.57 AM THE MATTER WAS CONCLUDED