AID15 v Minister For Immigration and Anor (No.2)
[2015] FCCA 2028
•27 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AID15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2015] FCCA 2028 |
| Catchwords: PRACTICE AND PROCEDURE – Application to reinstate – where applicant failed to attend final hearing – where orders made under r.13.03C(1)(e) – final order made under r.16.05(2)(a) – where insufficient evidence proffered as to non-attendance – where no utility in making an order to set aside judgment – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.412(1)(b), 476 Migration Regulations 1994, r.4.31 |
| Applicant: | AID15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 870 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 27 July 2015 |
| Date of Last Submission: | 27 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S. Given Sparke Helmore |
ORDERS
The application in a case is dismissed.
The Applicant pay the costs of the First Respondent in the application in a case filed on 2 July 2015 fixed in the amount of $945.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 870 of 2015
| AID15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application in a case to set aside earlier orders of this Court in a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958. The matter was the subject of directions made on 30 April 2015 fixing the matter for hearing on 29 May 2015 at 2.15 pm, at which time the applicant failed to appear. The Court received evidence on 29 May 2015 satisfying the Court as to the service as to the notification of the hearing date to the applicant and the Court determined under r.13.03C(1)(e) that it was appropriate to proceed with the matter by way of the general hearing and make final orders. The Court dismissed the application.
In this regard, the Court delivered reasons addressing the alleged grounds raised in the application concerning a decision of the Tribunal made on 11 March 2015 holding that it did not have jurisdiction in respect of an application for review of a decision of a delegate made on 18 August 2014 refusing to grant the applicant a Protection (Class XA) visa. The Tribunal held that it did not have jurisdiction because the application for review was made outside the 28-day period provided for pursuant to s.412(1)(b) and r.4.31 of the Migration Regulations 1994.
The application in a case was supported by an affidavit that provided the barest of explanations, saying relevantly:
I missed to attend the court hearing listed on 29 May 2015 due to my illness. Order was made without my appearance.
In further support of the application in a case, the applicant produced a medical certificate via Dr Ricky Lam dated 3 June 2015. That medical certificate made the bold assertion that the applicant was suffering from “medical condition” and failed to specify in any way the nature of the medical condition and retrospectively asserted that the applicant:
…is unfit for duty on 29 May 2015 to 3 June 2015.
The medical certificate does not in any way focus on the question of whether the applicant was suffering from some particular condition that prevented the applicant being able to attend Court rather than being fit for duty. The retrospective nature of the certificate, given the absence of any explanation about the condition or circumstances is also unsatisfactory.
The applicant did say from the bar table that a couple of days before the hearing date she was sick and could not get up. The applicant did not elaborate when invited to do so in relation to the nature of the condition, and no explanation was proffered in relation to the delay in the filing of the application in a case. It is also relevant that there was no communication made on 29 May 2015, being the date of the hearing, either to the first respondent or the Court conveying some inability to attend.
The Court’s power to deal with the matter under r.13.03C(1)(c) or (e) is a power informed by the objects of the rules and to be exercised in accordance with the interest of the administration of justice. Part of the object of those rules involves avoiding undue delay, expense and technicality. Where a matter has been specifically listed for final hearing and the Court decides to proceed under r.13.03C(1)(e) with hearing the matter, its order is then a final order. When a matter is fixed for final hearing one or more of the parties may have gone to the cost and expense of preparing for a final hearing. The Court when a matter is fixed for hearing is allocating limited court hearing time and the Court is also likely to prepare for that hearing. It is obviously contrary to the object of the rules to have hearing dates wasted for want of appearance of a party. Where the Court decides in the absence a party to proceed with the hearing under r.13.03C(1)(e) the final nature of the order means that generally the appropriate avenue for the party who failed to appear to challenge the final order would be by appeal. In these circumstances the failure to pursue an appeal and delay in the making of an application under r.16.05 are relevant matters to be taken into account.
It is a matter for the Court to determine whether, given a failure by a party to appear, the interest in the administration of justice warrants exercising the power under rr.13.03C(1)(c) or 13.03C(1)(e). The difference in nature of the order under r.13.03C(1)(c) is an interlocutory order and an order under r.13.03C(1)(e) would be a final order is of importance. The principle of finality must be taken into account where it is a final order in respect of an application under r.16.05, albeit that there is a clear power to review the order arising under r.16.05(2)(a).
The power under r.16.05(2)(a) must be exercised in the interests of the administration of justice in the circumstances of a particular case and that includes taking into account the nature of the order that is sought to be set aside or varied. It is, in my opinion, relevant that the order in this case was a final order made under r.13.03C(1)(e). In this regard there is a public interest in finality of litigation and where the Court has made a final order, the power under r.16.05(2)(a) involves a discretion that should take into account the nature of that final order in determining whether the interests of justice require the setting aside of the order under that rule.
In the circumstances of this case, the explanation for the failure to attend the hearing on 29 May 2015 was itself insufficient and inadequate and on that ground alone this is not a case where it would be in the interests of the administration of justice to make any order under r.16.05. Further, in this case in respect of the final order, the applicant had a right of appeal from that final order made on 29 May 2015 which was not pursued and it was not until 2 July 2015 that the application in a case was filed. There was no explanation advanced for the delay in the making of the application to set aside the order or to pursue an appeal. Whilst the mere expiry for a time for a right of appeal from a final order of this Court would not be determinative, given the power conferred by r.16.05(2)(a), the adequacy of the explanation for the delay in moving to set aside a final order is a relevant factor and requires satisfactory explanation. In my opinion, that delay was not the subject of any satisfactory explanation in this case. I find that there is no adequate explanation for the delay in the filing of the application or for the failure to attend the hearing on 29 May 2015. I find that the interests of the administration of justice do not warrant the exercise of the power under r.16.05(2)(a) for want of satisfactory explanation of the delay.
There is a second important factor to consider under r.16.05(2)(a) that is missing in this case, being the existence of any utility in the making of an order setting aside the order made on 29 May 2015. The applicant’s attention was drawn to the need to identify utility in the making of an order setting aside an earlier order by identifying a sufficiently arguable case in relation to the underlying matter. No submission was developed to identify any arguable ground upon which the Tribunal’s decision could be said to be the subject of a sufficiently arguable case to give rise to any utility in the making of an order to set aside the earlier orders. Accordingly I am not satisfied that there is any utility in making an order setting aside the earlier order.
In these circumstances, the interests of the administration of justice do not warrant the exercise of the power under r.16.05(2)(a) as there is no matter that is sufficiently arguable calling for review. Further, given that there is involved a final order made under r.13.03C(1)(e), the principles of finality warrant the Court being satisfied under r.16.05(2)(a) that the earlier order made by the Court is attended by sufficient doubt to warrant the setting aside of the order. No submission was advanced as to why the earlier final orders of the court were attended by any error.
I am not satisfied the orders of this Court delivered on 29 May 2015 are attended by sufficient doubt to warrant any exercise of the power under r.16.05(2)(a).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 29 July 2015
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