BZADA v Minister for Immigration - [2013] FCCA 791

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 791

Catchwords:

MIGRATION – Application to set aside earlier order dismissing application for want of appearance.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958, ss.424A, 426A(1), 441A, 477(1)
Migration Regulations 1994

Applicant:

BZADA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 876 of 2012

Judgment of:

Judge Jarrett

Hearing date:

13 May 2013

Date of Last Submission:

13 May 2013

Delivered at:

Brisbane

Delivered on:

13 May 2013

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents:

Mr Burgess

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application in a case filed on 26 April 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 876 of 2012

BZADA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

On 26 April, 2013 the applicant in these proceedings filed an application wherein he seeks, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, an order to set aside the orders that I made on 28 March, 2013. He seeks a further order that no action be taken to remove him from Australia while the decision is pending, and he seeks whatever order as to costs the Court thinks is appropriate.
In support of his application, there is an affidavit which consists of two paragraphs. They are as follows:
1. I am not represented by solicitor. Therefore, I am not fully aware of the legal consequence of the court hearings. Please consider my application in the light of the above circumstances.

2. I could not attend the hearing on the designated date because I made an honest mistake. I thought my hearing on 28 April 2013.
As the solicitor for the respondent points out in oral submissions, the applicant has also suggested that he was, in fact, present at court on 28 March, 2013 but was late.
These proceedings were commenced by an application seeking judicial review of a decision of a refugee review tribunal. The proceedings were commenced on 4 October, 2012 and were given a first court date of 8 November, 2012.
On that date the application came before me and I directed that:
a)the applicant file and serve any amended application that he wished to by 6 December;
b)he file and serve any evidence upon which he intended to rely by 6 December;
c)the first respondent file and serve any affidavit evidence that he might wish to rely upon by 20 December; and
d)each party file and serve written submissions and lists of authorities according to a timetable which took the matter up to a hearing date of 10:00am on 28 March 2012.
Both parties were given liberty to apply on three days notice. At the time I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 791
Decision Date: 13 May 2013

CaseChat Overview and Summary

In the Federal Circuit Court of Australia at Brisbane, the applicant, BZADA, sought to set aside an earlier order dismissing his application for judicial review of a Refugee Review Tribunal decision. The applicant also sought an order preventing his removal from Australia pending the determination of his application and an order for costs. The first respondent was the Minister for Immigration and Citizenship, and the second respondent was the Refugee Review Tribunal.

The primary legal issue before the Court was whether the applicant had provided sufficient grounds to justify setting aside the previous dismissal order, which was made due to his non-appearance at a hearing on 28 March 2013. The applicant's stated reasons for non-appearance were an "honest mistake" regarding the hearing date, believing it to be 28 April 2013, and a lack of full awareness of legal consequences due to not being represented by a solicitor. The applicant also suggested he may have been late for the hearing.

Judge Jarrett considered the applicant's affidavit, which contained only two paragraphs outlining his reasons. The Court noted that the applicant had failed to file any amended application, evidence, or written submissions by the deadlines set in earlier directions orders. The Court found that the applicant's explanation for his absence did not meet the threshold required to set aside the previous dismissal order. The reasons provided were considered insufficient to excuse the failure to appear and comply with the Court's directions.

Consequently, the Court ordered that the application filed on 26 April 2013 be dismissed. The applicant was also ordered to pay the first respondent's costs of and incidental to the application, fixed at $500.00.

Orders

Orders of the court

The application in a case filed on 26 April 2013 be dismissed.

The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 876 of 2012

BZADA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

On 26 April, 2013 the applicant in these proceedings filed an application wherein he seeks, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, an order to set aside the orders that I made on 28 March, 2013. He seeks a further order that no action be taken to remove him from Australia while the decision is pending, and he seeks whatever order as to costs the Court thinks is appropriate.

In support of his application, there is an affidavit which consists of two paragraphs. They are as follows:

1. I am not represented by solicitor. Therefore, I am not fully aware of the legal consequence of the court hearings. Please consider my application in the light of the above circumstances.

2. I could not attend the hearing on the designated date because I made an honest mistake. I thought my hearing on 28 April 2013.

As the solicitor for the respondent points out in oral submissions, the applicant has also suggested that he was, in fact, present at court on 28 March, 2013 but was late.

These proceedings were commenced by an application seeking judicial review of a decision of a refugee review tribunal. The proceedings were commenced on 4 October, 2012 and were given a first court date of 8 November, 2012.

On that date the application came before me and I directed that:

a) the applicant file and serve any amended application that he wished to by 6 December;

b) he file and serve any evidence upon which he intended to rely by 6 December;

c) the first respondent file and serve any affidavit evidence that he might wish to rely upon by 20 December; and

d) each party file and serve written submissions and lists of authorities according to a timetable which took the matter up to a hearing date of 10:00am on 28 March 2012.

Both parties were given liberty to apply on three days notice. At the time I made the directions orders, the first respondent, I think, had filed on 24 October, 2012 a bundle of relevant documents.

When the matter came before me on 28 March, 2013 there was no appearance for the applicant. No written submissions had been filed on his behalf. No amended application had been filed, and no affidavit evidence, to the extent any was necessary, had been filed either. Because he did not appear, the application was dismissed in his absence pursuant to rule 13.03C(1)(c) of the (then)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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