AZAES v Minister for Immigration and Border Protection

[2015] FCA 180

FEDERAL COURT OF AUSTRALIA

AZAES v Minister for Immigration and Border Protection [2015] FCA 180

Citation:	AZAES v Minister for Immigration and Border Protection [2015] FCA 180
Appeal from:	Application for leave to appeal: AZAES v Minister for Immigration & Anor (No. 2) [2014] FCCA 2648
Parties:	AZAES v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	SAD 284 of 2014
Judge:	ALLSOP CJ
Date of judgment:	3 March 2015
Legislation:	Migration Act 1958 (Cth) s 91X Federal Court Rules 2011 (Cth) Sch 3
Cases cited:	AZAES v Minister for Immigration & Anor [2014] FCCA 2326 AZAES v Minister for Immigration & Anor (No. 2) [2014] FCCA 2648
Date of hearing:	3 March 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	The applicant did not appear
Solicitor for the First Respondent:	Mr P d’Assumpcao of the Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 284 of 2014

BETWEEN:

AZAES
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	3 MARCH 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with the applicant to pay the first respondent’s costs in the sum of $1,756.00.

2.The first respondent notify the applicant by letter of the terms of these orders and the reasons therefore when those reasons are settled and available, drawing his attention to any statutory right or any right under the rules that they may have in relation to the orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 284 of 2014

BETWEEN:

AZAES
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP CJ
DATE:	3 MARCH 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this matter the applicant has not appeared before the Court today. His pseudonym was called three times outside. The name of the applicant was not called pursuant to the injunction on this Court in s 91X of the Migration Act 1958 (Cth), assuming that provision to be constitutionally valid (as I do).

2. The applicant has filed an application for leave to appeal from orders made by a Federal Circuit Court judge on 15 October 2014 in AZAES v Minister for Immigration & Anor (No. 2) [2014] FCCA 2648. Those orders were orders made after a hearing, also at which the applicant did not appear, in which the learned Federal Circuit Court judge refused to set aside an earlier decision that he had made on 3 September 2014 (AZAES v Minister for Immigration & Anor [2014] FCCA 2326) dismissing an application for review of a decision of the Refugee Review Tribunal. The applicant also failed to appear before the Circuit Court on that earlier occasion.

3. On the first occasion, the learned Federal Circuit Court judge dismissed the matter, not merely for lack of attendance and want of prosecution, but they also looked at the Refugee Review Tribunal decision and could find no reviewable error of a jurisdictional character. 

4. The applicant was given notice of the Refugee Review Tribunal hearing, but in the circumstances dealt with by the Circuit Court judge at [38] and following of his reasons for the first judgment given on 3 September 2014 ([2014] FCCA 2326), the applicant did not attend the Tribunal hearing. The absence of the applicant before the Tribunal is not relevant to today’s application. What is relevant in today’s application is the fact that there has been non-attendance before this Court.

5. The order of Registrar Bochner made on 3 November 2014 set the matter down for a hearing during the current appeal period, and the matter was later set down for today.  The reasons of the learned Federal Circuit Court judge for refusing to set aside the first judgment were that the medical certificate which had been filed late in the Court was an inadequate basis for explaining the absence of the applicant and their failure to appear before the Court to prosecute the case. 

6. In the circumstances set out in those reasons, there has been no apparent error committed by the learned Federal Circuit Court judge.  In relation to the first judgment, the learned Federal Circuit Court judge carefully analysed the Tribunal’s reasons and no error is disclosed on the face of that judgment.

7. If the applicant is to appear in this Court and seek to set aside the orders that I propose to make, he will have to explain:  first, why he did not appear today;  second, what is the error disclosed by the reasons of the Federal Circuit Court judge on the second occasion before that Court; third, what error is disclosed by the reasons of the Federal Circuit Court judge on the first occasion; and fourth, it will be necessary as a residual matter to identify what injustice is caused by the dismissal of the application by reference to the underlying character and terms of the decision of the Refugee Review Tribunal.  The applicant has, under the Federal Court Rules 2011 (Cth) (the Rules), an entitlement to make application to set aside an order made in his absence.  I should add that any such  application should be made on proper notice, promptly, with a full affidavit explaining the matters to which I have made reference.  I will include in the orders a direction that the first respondent serve on the applicant a copy of the orders and reasons made today.

8. The Minister has requested an order for costs in the sum of $1,756.00 being the fee permitted for an application of this nature by Schedule 3 of the Rules. Given the background to the matter, I think that is appropriate.

9. For the above reasons, I order that:

   (1)The application for leave to appeal be dismissed with the applicant to pay the first respondent’s costs in the sum of $1,756. 

   (2)The first respondent notify the applicant by letter of the terms of these orders and the reasons therefore when those reasons are settled and available, drawing his attention to any statutory right or any right under the rules that he may have in relation to the orders.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop .

Associate:

Dated:        6 March 2015