AGP15 v Minister For Immigration and Anor (No.2)

[2015] FCCA 1183

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGP15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1183

Catchwords:
MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa –complementary protection – law of general application – no jurisdictional error.

PRACTICE AND PROCEDURE – Application for reinstatement – application dismissed.

Legislation: 
Federal Circuit Court Rules 2001 r.16.05
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AGP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 798 of 2015

Judgment of: Judge Street

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Sydney

Delivered on: 6 May 2015

REPRESENTATION

Solicitors for the Applicant: Ms E. Perri
Michael Vassili Barristers & Solicitors

Solicitors for the Respondent: Mr K. Eskerie
Sparke Helmore

ORDERS

1. The interlocutory application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1012.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 798 of 2015

AGP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under r.16.05 of the Federal Circuit Court Rules 2001, seeking to set aside an order of this Court made on 23 April 2015.  The applicant has read three affidavits, two by the applicant and one by the solicitor.  On 23 April 2015, after the matter was called and in default of appearance by the applicant, this matter was summarily dismissed for reasons given by the Court, dated 23 April 2015.  Those reasons identified the absence of any arguable jurisdictional error on the face of the application and in light of the decision of the Tribunal.

2. The power under r.16.05 provides a broad discretion to be exercised in accordance with the interests of the administration of justice. Generally two requirements must be met, first that there is an adequate explanation for the default that occurred and second that there is utility in making the order. The affidavit evidence from the applicant identifies a change of solicitors occurred but does not address what occurred between the applicant and the new solicitors. The application clearly identified a hearing date.

3. The solicitor’s affidavit is equally deficient and whilst identifying details relating to the filing of a proposed notice of change of address, fails to explain how the change of address was prepared and whether or not a copy of the application with the return hearing date was provided by the applicant to the solicitors or whether the solicitors took any steps to obtain the same.  It was suggested by the applicant’s solicitor from the bar table that there may have been a default or administrative error by the solicitors. 

4. Nothing in the affidavit of the solicitor for the applicant properly addresses any alleged error or the nature of the failure or circumstances in which it occurred, if that is what happened.  The explanation by the applicant and the applicant’s solicitor for the default of appearance is entirely unsatisfactory and is not sufficient as an explanation in respect of the default.  On that ground alone, I dismiss the application. 

5. The second requirement is that there must be utility in relation to the making of an order, setting aside earlier orders, in the sense that it would not be unjust to allow the earlier orders to stand.

6. No argument was advanced on behalf of the applicant as to why there was utility in making the orders.  No argument was developed to identify any jurisdictional error by the Tribunal.  The applicant’s solicitor sought to advance an argument that because the entering of summary judgment was discretionary, that was of itself sufficient as a basis upon which there should be a setting aside of the earlier orders. That is not a basis upon which the Court can conclude that it would be unjust to allow the earlier orders to stand.  When invited to identify whether there was any arguable jurisdictional error in the Tribunal’s reasons, no submission was developed to identify any arguable jurisdictional error.

7. I am clearly satisfied that it is not unjust to allow the earlier orders to stand.  I am clearly satisfied that the interests of the administration of justice do not require a setting aside of the orders made by this Court on 23 April 2015.  The interlocutory application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 May 2015