ANV15 v Minister for Immigration & Anor (No.2)

[2015] FCCA 3462

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANV15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 3462

Catchwords:
MIGRATION – Application to set aside orders – r.16.05(2)(f) of the Federal Circuit Court Rules 2001 (Cth) – orders set aside by consent – show cause application dismissed – no jurisdictional error in the Second Respondent’s decision – costs.

Legislation:

Migration Act 1958 (Cth), ss.476A(3), 477(1), 477(2)

Federal Circuit Court Rules 2001 (Cth), r.16.05

Applicant: ANV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 864 of 2015

Judgment of: Judge Hartnett

Hearing date: 9 December 2015

Delivered at: Melbourne

Delivered on: 9 December 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondents: Mr Young

Solicitors for the First Respondent: Sparke Helmore

ORDER BY CONSENT

1. Pursuant to r.16.05(2)(f) of the Federal Circuit Court Rules 2001 (Cth) Orders numbered two and three of the Orders made on 23 October 2015 are set aside.

ORDERS BY THE COURT

1. The Application in a Case filed on 3 December 2015 is otherwise dismissed.

2. The Application filed on 15 April 2015 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 864 of 2015

ANV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. On 3 December 2015, the Applicant filed an Application in a Case supported by Affidavit affirmed on 27 November 2015. The Application sought to appeal Orders made on 23 October 2015, wherein the Court dismissed judicial review proceedings which were commenced by an Application to show cause on 15 April 2015. By order number 2 of the Orders made 23 October 2015, the Applicant’s oral application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (‘the Act’) was dismissed. A further order made that day, order number 3, provided for the Applicant to pay the costs of the First Respondent fixed in the sum of $5,800.

2. The Court has no jurisdiction to hear and determine appeals against its own decisions, and an appeal may not be brought to the Federal Court of Australia from a judgment of this Court that makes an order under s.477(2) of the Act.[1] What the Application in a Case, in fact seeks to achieve, is the setting aside of orders 2 and 3 of the Orders made 23 October 2015 and a reinstatement of the substantive Application. Such outcome is envisaged by application of r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

   [1] Migration Act 1958 (Cth), s.476A(3).

3. In submissions made by the First Respondent and the Applicant, which had as their cause a differing date shown for the date of lodgement of the Application and the date of filing the Application, both parties submitted to the Court that the Application was out of time. It was then erroneously concluded by the Court that the application made by the Applicant on 23 April 2015 was indeed outside the 35 day period specified in s.477(1) of the Act, when it was not so out of time.

4. Under r.16.05(2) of the Rules, the Court may set aside its judgment or order after it has been entered if:-

   “(a) the order is made in the absence of a party; or

   (b) the order is obtained by fraud; or

   (c) the order is interlocutory; or

   (d) the order is an injunction or for the appointment of a receiver; or

   (e) the order does not reflect the intention of the Court; or

   (f) the party in whose favour the order is made consents.”

5. Given the show cause application was made within time, the First Respondent consented, on the hearing this day, to a setting aside of orders 2 and 3 of the Orders made 23 October 2015 pursuant to r.16.05(2)(f) of the Rules. Obviously, the Applicant also consented to such order. This resulted in the show cause Application filed on 15 April 2015 remaining on foot.

6. The First Respondent sought this day that the Application in a Case filed on 3 December 2015 be dismissed, save as to the above described consent order; that the substantive Application of 15 April 2015 be dismissed; and that costs be payable by the Applicant to the First Respondent. 

7. On 29 September 2015, the Applicant appeared in person at the show cause hearing and orally sought an extension of time.  The Applicant deposed in his Affidavit dated 14 April 2015 at paragraph 6 that:-

   “I hereby submit to the Court an Application for an extension of time in this proceeding due to lack of any form of legal assistance that I have at this time, and as my intellectual disability and inequal psychological health greatly reduces my ability to comprehend and understand legalities and the processes related.”

8. As set out in the Reasons for Judgment of 23 October 2015,[2] the Court dismissed the Applicant’s application for an extension of time because there was no merit in the substantive application. The Court determined that the Second Respondent had complied with its statutory obligations of natural justice as set out in pt.4, div. 7 of the Act and that no jurisdictional error attended the decision of the Second Respondent dated 11 March 2015.

   [2] ANV15 v Minister for Immigration & Anor [2015] FCCA 2859.

9. The Court adopts and relies upon, in these Reasons for Judgment, paragraph 7 to 28 inclusive of its Reasons for Judgment of 23 October 2015.[3] 

   [3] Ibid.

10. The substantive application is dismissed, there being no jurisdictional error attending the decision of the Tribunal. Costs shall follow the event.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:  

Date: 22 December 2015