BPU15 v Minister for Immigration
[2019] FCCA 126
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPU15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 126 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case to set aside or vary Court’s orders dismissing application for non-appearance at final hearing – principles on application to set aside or vary orders – whether applicant’s explanation for non-appearance sufficient – whether arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.8.01, 13.03C, 16.05 Migration Act 1958 (Cth), s.36 |
| Cases cited: AJY16 v Minister for Immigration & Anor [2017] FCCA 565 AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 AYE16v Minister for Immigration & Border Protection [2018] FCA 108 BTK15 v Minister for Immigration & Anor [2015] FCCA 2586 DVV17 v Minister for Immigration & Anor [2017] FCCA 3096 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 SZRFH v Minister for Immigration & Anor [2017] FCCA 2543 SZRFH v Minister for Immigration & Border Protection [2018] FCA 1100 SZUFS v Minister for Immigration & Anor (No.2) [2015] FCCA 545 WZATI v Minister for Immigration & Border Protection [2015] FCA 923 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 | ||
| Applicant: | BPU15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | DIANNE ADAMS, PO IMA PROTECTION WA, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 369 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 13 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms L Helsdon (by telephone from Brisbane) |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant’s application in a case filed on 30 October 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 369 of 2015
| BPU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| DIANNE ADAMS, PO IMA PROTECTION WA, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 26 October 2017 in this Court Judge Howard dismissed the applicant’s substantive application, with costs, after the applicant failed to appear at the final hearing (“October 2017 Orders”). The substantive application had sought judicial review of the second respondent’s recommendation (“Reviewer’s Recommendation”) in connection with the applicant’s request for a refugee status assessment.
By an application in a case filed on 30 October 2017 the applicant has applied for the October 2017 Orders to be set aside, and for the proceeding to be listed for directions to set a hearing date.
The first respondent, the Minister for Immigration & Border Protection (“Minister”) submits that the application in a case should be dismissed with costs. The Minister submits that the application ought to be dismissed because:
a)the applicant’s explanation for his failure to appear at the hearing on 26 October 2017 is inadequate; and
b)the substantive application has no merit.
Principles on an application to set aside or vary orders made in the absence of a party
The application in a case does not expressly refer to any rule under the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) permitting an application to set aside an earlier order of the Court made in the absence of a party. That omission is not surprising given that the applicant is a litigant in person for whom English is a second language (the applicant required an interpreter at hearing) and who, plainly enough, has no legal training or experience to speak of. Rule 16.05(2)(a) of the FCC Rules provides that the Court may set aside a judgment or order after it has been entered if it was made in the absence of a party. The October 2017 Orders were made in the absence of the applicant, and one of those orders dismissed the substantive application pursuant to r.13.03C(1)(c) of the FCC Rules. The Court has therefore assumed that the application in a case is made pursuant to r.16.05(2)(a) of the FCC Rules.
In determining whether to set aside the October 2017 Orders the Court has a broad discretion. The relevant factors which a Court will ordinarily have regard to include:
a)whether there was an adequate reason for the non-appearance;
b)whether there was any delay in making the application to set aside the order;
c)whether there is any prejudice to the other party which could not be cured by costs or the giving of security for costs if the matter is reinstated; and
d)whether there is an arguable case in relation to the substantive application.
The factors set out above have been applied in the context of migration judicial review applications in numerous cases, see, for example, Singh v Minister for Immigration & Anor [2014] FCCA 960 at [10] per Judge Lucev (and cases there cited); CAL15 v Minister for Immigration & Anor [2016] FCCA 1537 (“CAL15”) at [7] and [11] per Judge Jones, confirmed on an application for leave to appeal in CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (“CAL15-Federal Court”) at [4] per Mortimer J.
In relation to whether there is an arguable case, the Court notes that it is critical to the proper exercise of the discretion in the circumstances that the Court not proceed as if the application in a case is a final hearing of the judicial review proceeding, it only being necessary that the Court be satisfied that a ground of judicial review is arguable, and that it is therefore appropriate to hear full argument, at a later time: CAL15-Federal Court at [5]-[6] per Mortimer J; MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J. In CAL15-Federal Court the Federal Court observed that it “should not [be] expect[ed] a ground of judicial review … be fully developed, especially by an unrepresented asylum seeker whose first language is not English”: at [6] per Mortimer J. The failure to present substantive contentions on asserted errors of law in an administrative decision may, however, be sufficient to find that those contentions are not arguable: CAL15-Federal Court at [40] per Mortimer J, but the Court should nevertheless consider the matter independently where an applicant is a litigant in person whose first language is not English and who is unfamiliar with the Australian legal system: CAL15-Federal Court at [40] per Mortimer J].
Consideration
Delay and prejudice
The first respondent, the Minister for Immigration & Border Protection (“Minister”) accepts that:
a)the delay was not significant, given that the application in a case was filed 4 days after the October 2017 Orders; and
b)there is no prejudice, because any prejudice could be adequately dealt with by costs: CAL15 at [11] per Judge Jones.
It follows that the matters which warrant further consideration are:
a)whether the applicant’s explanation for his failure to appear on 26 October 2017 is adequate; and
b)whether the substantive judicial review application is arguable.
The Minister opposed the setting aside of the October 2017 Orders on the bases that:
a)the applicant’s explanation for his failure to appear on 26 October 2017 was inadequate; and
b)the substantive judicial review was not arguable.
The explanation for non-attendance at the hearing
In support of the application in a case, the applicant filed an affidavit on 30 October 2017 (“Applicant’s Affidavit”). The Minister did not seek to cross-examine the applicant on the Applicant’s Affidavit, or otherwise. The Applicant’s Affidavit explains that he failed to appear at the final hearing because he had been told that although the final hearing was listed for hearing in Brisbane, he would be able to attend via video link from the Commonwealth Law Courts Building in Perth (“Perth CLC Building”), but the Perth CLC Building was not open when he attended at 8.00am Australian Western Standard Time (“AWST”) (the hearing in Brisbane being at 10.00am Australian Eastern Standard Time (“AEST”)).
At [3]-[6] of the Applicant’s Affidavit he says as follows:
3. On the 28th October 2016 this matter was listed for hearing in the Brisbane registry whilst I was before the Registrar in Perth I was told this would be heard in Brisbane but that l would be connected by video link.
4. I attended at the Perth court on the 26th October [2017] at 8am the time I calculated it would be in Perth for the 10am hearing in Brisbane. I could not enter the building until 8.30am when it opened.
5. I enquired at the front counter where I should go for the video link and was told by a staff member that the hearing was in Brisbane and because I did not attend the application was dismissed.
6. I was unaware that I would have to make any arrangements for a videolink to Perth and so was denied my opportunity to have a hearing.
The applicant does not specifically identify who told him that he would be connected by video link, although it is a reasonable inference for the Court to draw that he was told that, or says that he was told that, by the presiding Registrar, and that was what was put in the applicant’s oral submissions.
The applicant was before a Registrar in the Perth Registry on 28 October 2015 when an order was made that pursuant to r.8.01 of the FCC Rules the proceedings be transferred to the Brisbane Registry of the Court, and that it be listed for directions following the determination of an application for special leave to appeal, and any subsequent appeal, in the High Court in relation to a particular judgment of the Full Court of the Federal Court. There is no mention in the Registrar’s order of 28 October 2015 of any video link hearing facility being requested, required or ordered for any future hearing of the substantive application.
The Applicant’s Affidavit at [3] appears to suggest that he was involved in a directions hearing of the matter on 28 October 2016. That, however, is not the case. The Report of Listing for 28 October 2016 shows that the order made at 8.10am AEST (that is, 6.10am AWST) by a Judge of the Court in the Brisbane Registry on that date listing the matter for hearing on 26 October 2017 was made in Chambers, seemingly without appearances (“October 2016 Orders”). It follows that on the materials before the Court, what was allegedly said by the Registrar as to the applicant being able to appear by video link in any future hearing between Brisbane and Perth can only have been told to the applicant on 28 October 2015.
The October 2016 Orders were standard programming orders which include an order listing the substantive application for final hearing, which order is in the following terms:
That the application be adjourned to 10:00am on 26 October 2017 for final hearing in the Federal Circuit Court of Australia sitting at Brisbane.
The October 2016 Orders were made by consent, and there is no mention in them of any hearing by video link.
The Court observes that both at the time of the directions hearing before a Registrar on 28 October 2015, and at the time of the making of the October 2016 Orders, the applicant was represented by lawyers. Those lawyers were Brisbane based lawyers. There is no evidence to show that the applicant’s Brisbane based lawyers made any request for a video link hearing at any time.
The Minister submitted that even if the applicant had been informed that he could attend by video link:
a)his failure to appear may be said to have arisen as a result of his own confusion;
b)it was the applicant’s obligation to make appropriate arrangements to ensure that he appeared; and
c)in the circumstances there is not an adequate explanation for the applicant not attending the hearing on 26 October 2017.
In CAL15 the applicant had confused the dates in his diary. In CAL15 the applicant asserted in his application in a case that he had not been able to attend the hearing because of reasons beyond his control. On the hearing of CAL15’s application in a case he was asked by the presiding Judge what that meant. He said that he thought that the date of the hearing was 3 March 2016, but when he checked his email, he realised it was on 2 March 2016. This Court considered that this was not an adequate explanation. In CAL15 at [101] per Judge Jones the Court said:
It is the Applicant’s application for judicial review. It is a serious application. He wants to have the Tribunal’s decision quashed, and it is a decision in relation to a Protection Visa. The Applicant was under an obligation at all times to ensure that he was properly informed of the date of every court date, including a directions hearing.
In SZUFS v Minister for Immigration & Anor (No.2) [2015] FCCA 545 (“SZUFS (No.2)”), the applicant had been advised of a hearing date which was subsequently changed, and the applicant notified of the change by letter and email, with the applicant confirming receipt of the email in an affidavit filed with the application in a case to set aside the earlier dismissal for non-appearance: SZUFS (No.2) at [15]-[16] per Judge Driver. This was found by this Court not to be an adequate reason for non-appearance at a callover at which the dismissal for non-appearance order was made: SZUFS (No.2) at [16] per Judge Driver.
The Minister submits CAL15 and SZUFS (No.2) are analogous to this case because “the Applicant essentially blames his confusion in circumstances where he bore the onus of ensuring that he would be able to attend the hearing at the time it was set down for”: Minister’s Application in a Case Submissions at [17].
The Court does not accept that CAL15 and SZUFS (No.2) are analogous to this case, and rather takes the view that this case is distinguishable on the facts. That is principally so because there is no evidence in this case that the applicant was confused or made a mistake with respect to the hearing date.
The applicant was given a hearing date in the October 2016 Orders, and correctly calculated that, because he lived in Perth, he would need to attend the Perth CLC Building at 8.00am AWST on the day of the hearing (26 October 2017), but when he sought to attend the Perth CLC Building was closed – at least to the public and litigants. The applicant was therefore not confused about the hearing date or time.
With respect to whether there was any confusion in relation to a hearing by video link the evidence of the applicant, which was not challenged, establishes that he was told, by a Registrar, that there would be a video link hearing between Brisbane and Perth. There is no evidence to the contrary. The Minister did not seek to contradict the applicant’s account in this regard, and did not cross-examine the applicant on the applicant’s affidavit. Nor did it seek to contradict his evidence in any other way, as it might have done, by filing an affidavit from, for example, the lawyer who appeared for the Minister before the Registrar, or that lawyer’s assistant. Nor did the Minister seek to rely upon any documents, or correspondence, relevant to the case, or this issue, which might have been relevant. On the evidence the applicant, through no fault of his own, was unable to access the Perth CLC Building, and so even if a video link had been arranged, he would not have been able to attend. In the circumstances, the Court is therefore left with the applicant’s unimpeached evidence that he was told by an officer of the Court that there would be a video link hearing for the final hearing of the substantive judicial review application, and that because he was unable to access the Perth CLC Building he was unable to attend the final hearing.
It is easy to criticise the applicant’s approach by:
a)pointing out that neither the Registrar’s Orders or the October 2016 Orders expressly referred to a video link hearing;
b)noting that two years elapsed between the time of the Registrar’s Orders and the October 2017 hearing before Judge Howard, and in that time the applicant seemingly made no inquiries with respect to his hearing (save presumably to obtain the October 2016 Orders); and
c)noting it was naive to expect a federal court to be open, and a courtroom available in Perth at 8.00am AWST, with a video link to Brisbane,
but all of that ignores the fact that the applicant, on the evidence, was told that there would be a video link hearing between Brisbane and Perth at the time of the hearing, and that the applicant is a self-represented litigant, with English as a second language, and seemingly limited knowledge of the Australian legal and court systems.
In all of the above circumstances, the Court is satisfied that the applicant had an adequate explanation for not attending the hearing because he was told that a video link would be made available at the time of the final hearing of the substantive judicial review application, and that did not occur, and there was no means, because the Perth CLC Building was closed to the public and litigants, for the applicant to do anything to alleviate that situation prior to the October 2016 Orders being made.
Whether the substantive judicial review application is arguable
Importantly, as the Federal Court observed in CAL15-Federal Court at [4]-[6] per Mortimer J:
a)if there is no arguable case on judicial review, it is unlikely that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondents and fairness to the applicant;
b)it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied that there is an arguable case because it can create false hopes and an expectation, not grounded in law and reality, that the substantive application may be successful;
c)it is critical to the proper exercise of the discretion that a Court not proceed as if the application in a case is a final hearing of the substantive application, and a Court need not be satisfied to the same level it would be if the substantive application were to proceed; and
d)the threshold is whether the ground of review is “arguable”, which has been held to mean that it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material presently before the Court sufficient for it to be satisfied it is appropriate to hear full argument.
The applicant relied on three grounds of review in the substantive judicial review application, namely:
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus [sic].
The grounds of review are template grounds regularly seen in dozens of applications by Sri Lankan citizens in applications for judicial review of migration decisions in this Registry in the last decade. The grounds are almost invariably unsuccessful: see, merely by way of example, AJY16 v Minister for Immigration & Anor [2017] FCCA 565; BNV15 v Minister for Immigration & Anor [2016] FCCA 740; BTK15 v Minister for Immigration & Anor [2015] FCCA 2586. The fact that they are template grounds does not preclude jurisdictional error, but it does make it more likely that the substantive judicial review application is one which may not be arguable.
The applicant’s failure to particularise the grounds of the substantive judicial review application is also a consideration which makes it difficult to find that the substantive judicial review application is arguable, and may, by itself, be sufficient to warrant dismissal of the substantive judicial review application. Where a court is not presented with any substantive contentions on asserted errors of law in an administrative decision the threshold of arguability is not high: CAL15-Federal Court at [40] per Mortimer J. In this case, without more, the absence of particularisation in the grounds of the substantive judicial review application warrants its dismissal. This Court, and the Federal Court, have found that a failure to particularise a ground of judicial review is a sufficient basis for the ground to be dismissed: AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; AYE16 v Minister for Immigration & Anor [2017] FCCA 1424; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J, but compare now DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9] per Colvin J where the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation where a party is self-represented, and that an applicant ought to be given an opportunity to explain orally the matters with which they take issue.
In any event, it is appropriate for the Court, in circumstances where the applicant is an applicant in person, with English as a second language, and a limited understanding of the Australian legal and court systems, to independently examine the Reviewer’s Recommendation to satisfy itself that the Reviewer’s Recommendation is not affected by jurisdictional error: CAL15-Federal Court at [40] per Mortimer J.
The want of particularisation also makes it difficult to understand how any error of the kind alleged in the grounds of the substantive judicial review application could have had a material effect on the Reviewer’s Recommendation, for an error must be material, that is it must affect the administrative decision itself, before it can be a jurisdictional error: Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 at [8]-[19] per Jagot J (and the cases there cited).
Without particularisation, it is however, difficult to understand the case the applicant might seek to make. For example, it is difficult to understand:
a)in what respect the rules of natural justice or procedural fairness were not followed;
b)what errors of law are said to appear on the face of the record; and
c)what delegated legislation is being referred to, and in what respects it might be said to be over or beyond power (or ultra vires).
The Court gave the applicant the opportunity to make oral submissions in support of the claim he had an arguable case to present to the Court, and that the October 2016 Orders should therefore be set aside. Those submissions were:
a)the Reviewer did not undertake the assessment in a proper manner;
b)it had been taken almost two years between his interview and the Reviewer’s Recommendation being given;
c)he has been in Australia for almost 10 years and takes care of his cousin, often acting as his carer; and
d)he “can’t say where it is wrong” (when asked what he believes is the error in the Reviewer’s Recommendation).
The fact that the applicant is not able to specifically say where the Reviewer’s Recommendation is “wrong” does not assist in particularising his claims and establishing an arguable case of jurisdictional error on the substantive judicial review application.
Insofar as the process undertaken by the Reviewer is concerned, there is nothing to indicate that there was a denial of procedural fairness in relation to the actual hearing of the claims made by the applicant, or the applicant’s capacity and opportunity to put material before the Reviewer for consideration.
The Court observes that the applicant was provided with notice that there had been a change of Reviewer conducting the assessment, that there would be no further hearing conducted, and was asked to make any submissions on the change of decision-maker and any further submissions: CB 300-301. The applicant’s representative provided submissions and appeared to raise no concern with the assessment being conducted by an alternative Reviewer. The facts differ from those in Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 (“WZARH”) in that the applicant in this case, unlike WZARH, was provided with notice that the Reviewer who conducted the hearing would no longer decide the applicant’s Review, and the applicant had an opportunity to make submissions or comment on this change and that there would be no further oral hearings. The applicant was therefore on notice of those matters. In response to this notice the applicant’s migration agent provided submissions to the Reviewer: CB 304-310 and 323, which did not object to the proposed change of Reviewer and change in process, and which expressly stated at CB 304:
[The applicant’s] claims have been set out numerous times. We do not intend to repeat them here.
In terms of ground 1 claiming there was a denial of procedural fairness and the applicant’s oral submission concerning the delay between hearing and the Reviewer’s Recommendation it has been said that the circumstances in which delay of itself, will vitiate proceedings, or a decision, are rare: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171 (“NAIS”) at [5] per Gleeson CJ. In NAIS at [106] per Kirby J expressed that to make good a claim to unfairness, it is sufficient to establish that there was a substantial and real risk that the decision-maker’s capacity to assess the claims before it, and to perform its statutory functions, were impaired by the procedures adopted. In the absence of a legislative mandate to complete a review, there must be something in addition to the delay for the Court to find the applicant was denied procedural fairness.
The Reviewer found parts of the applicant’s claims not credible. In circumstances where there has been an inordinate delay, a decision-maker may be deprived of the capacity to assess oral evidence, demeanour and credibility: NAIS at [85] and [103] per Kirby J and [161] and [174] per Callinan and Heydon JJ. While the Reviewer expressed doubt as to the inconsistencies in the applicant’s claims, many of the findings made rejecting the claims were based upon there being no evidence to support the claims, country information to refute or challenge the claims, and the applicant’s own submissions provided by his migration agent. In those circumstances, the Court finds that whilst the Reviewer’s Recommendation was expressed as resting upon the assessment of the applicant’s credibility, it also rested upon there being no proper evidence to support the applicant’s claims, and in that respect, there is an independent and sustainable basis for making the findings made by the Reviewer in relation to the applicant’s evidence. It follows that the delay in the assessment of the evidence, and the circumstances of the delay, do not give rise to any arguable jurisdictional error in the Reviewer’s Recommendation.
With respect to the “independence” of the Reviewer’s Recommendation from the findings of the previous assessments undertaken, the Court notes that the Reviewer did refer to the “claims” and “findings” in previous reviews: CB 317-319.
In SZRFH v Minister for Immigration & Anor [2017] FCCA 2543 at [34]-[43] and [51]-[60] per Judge Manousaridis (“SZRFH”) (upheld on appeal in SZRFH v Minister for Immigration & Border Protection [2018] FCA 1100) this Court discussed the manner in which an independent assessment (in that case an Independent Treaties Obligation Assessment), ought to be conducted where there have been previous decisions made. Of note are the following remarks in SZRFH at [60] per Judge Manousaridis:
I do not accept the applicant's claim that the “Assessor has anchored its decision making process to that of a previous decision maker and has failed to make a fresh assessment as required and fell into jurisdictional error”. That is apparent from the description I have already given of the manner in which the Assessor conducted the ITOA interview. It is also apparent from the Assessor's reasons for decision. Those reasons show the Assessor identified each of the claims the applicant made, the evidence and submissions the applicant gave about those claims, and considered those claims, accepting some, and rejecting others. The claims the Assessor rejected were claims the applicant did not previously make and, therefore, were not the subject of any findings by previous decision-makers. Further, to the extent the Assessor's decision was based on country information concerning the position of Tamils in Sri Lanka, it was county information the Assessor himself considered.
It is clear on reading the Reviewer’s Recommendation as a whole that the Reviewer comprehensively considered each of the applicant’s claims afresh, and that updated country information was referred to in making findings regarding the applicant’s ability to meet s.36(2)(a) and (aa) of the Migration Act: CB 323-345. The Court therefore cannot identify any arguable jurisdictional error in the Reviewer’s Recommendation arising from any alleged adoption of previous assessments undertaken in relation to the applicant, or any failure to bring an independent mind or make an independent assessment of the applicant’s claims.
Otherwise, on a review of the grounds of the substantive judicial review application, and of the oral submissions made by the applicant at hearing, there is no other matter raised which might constitute an arguable jurisdictional error in the Reviewer’s Recommendation.
The Court notes that the applicant sought to hand up a number of documents at the hearing for the Court to consider, which were of a kind regularly sought to be annexed to affidavits or handed up in judicial review applications concerning applicants from Sri Lanka: DVV17 v Minister for Immigration & Anor [2017] FCCA 3096 (“DVV17”) at [9] per Judge Lucev. The Court refused leave to accept these documents on the basis the documents were not before the Reviewer and therefore the Court cannot have regard to them, particularly so when they post-date the Reviewer’s Recommendation: DVV17 at [10(d)] per Judge Lucev; WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J, and clearly invite the Court to undertake impermissible merits review: DVV17 at [10(e)] per Judge Lucev; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1.
Conclusion and orders
The Court has concluded that the applicant cannot establish an arguable case of jurisdictional error on the substantive judicial review application, and has not established that the grounds of judicial review in the substantive judicial review application are arguable. Consequently, the applicant cannot establish that it is necessary for this Court to exercise its discretion to set aside the October 2017 Orders dismissing the substantive judicial review application on the basis of the applicant’s non-appearance at hearing. It follows that there will be an order that the applicant’s application in a case filed on 30 October 2017 be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 25 January 2019
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