BZAFG v Minister for Immigration and Border Protection

[2014] FCA 882

FEDERAL COURT OF AUSTRALIA

BZAFG v Minister for Immigration and Border Protection [2014] FCA 882

Citation:	BZAFG v Minister for Immigration and Border Protection [2014] FCA 882
Appeal from:	BZAFG & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 1748
Parties:	BZAFG and BZAFH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	QUD 142 of 2014
Judge:	DOWSETT J
Date of judgment:	7 August 2014
Legislation:	Federal Circuit Court Rules 2001 rr 13.03C, 44.12
Date of hearing:	7 August 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Solicitor for the First Appellant:	First Appellant appeared on own behalf
Solicitor for the Second Appellant:	Second Appellant did not appear
Solicitor for the First and Second Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 142 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAFG
First Appellant

BZAFH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	7 AUGUST 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the purported appeal be dismissed; and

2.the application for leave to appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 142 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAFG
First Appellant

BZAFH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	7 AUGUST 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The appellant arrived in Australia on 2 April 2008. On 19 June 2012, he lodged an application for a protection visa. The application was rejected by a delegate of the Minister. The appellant sought review of the decision in the Refugee Review Tribunal. On 15 July 2013 it refused his application for review. The appellant then applied to the Federal Circuit Court for review of the Tribunal’s decision. The matter was mentioned before Judge Burnett, who ordered, pursuant to the rules of the Court, that the appellant show cause why the application should not be dismissed, upon the basis that it failed to raise an arguable case. That course is contemplated by r 44.12 of the Federal Circuit Court Rules 2001 (the “FCCR”).

2. The matter was listed for hearing before Judge Howard on 26 March 2014. On that day the appellant did not appear. He had previously sent an email to the Circuit Court, indicating that he was unable to appear because of illness. His Honour considered that the appellant had not demonstrated a basis upon which the Court might adjourn his application, and so his Honour struck it out pursuant to r 13.03C(1)(c) of the FCCR. That rule provides:

   (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

   (a)       adjourn the hearing to a specific date or generally;

   (b)       order that there is not to be any hearing, unless:

   (i)        the proceeding is again set down for hearing; or

   (ii)       any other steps that the Court directs are taken;

   (c)       if the absent party is an applicant—dismiss the application;

   (d)if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;

   (e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.

   (2)If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

3. It seems that an error was made in taking out the final order, reference being made to r 44.12, rather than to r 13.03C. This error was subsequently corrected.

4. As is common in rules of court, the FCCR provide for the setting aside of orders such as that made by his Honour. In applying to set aside such an order, an applicant must generally file an affidavit which identifies the reasons for his or her failure to appear on the relevant date, explains any delay in making the application to set aside the order, and demonstrates that the applicant has reasonable prospects of success in connection with the substantive proceedings. The FCCR may require that other matters be addressed. The appellant did not take this course. Rather, he filed a notice of appeal to this Court, seeking to set aside the order of Judge Howard, effectively on the basis that his Honour had failed to address his criticisms of the Tribunal’s decision.

5. However, in the circumstances, his Honour was not required to address the merits of the case, and so no opportunity arose for him so to err. Any appeal to this Court can only be from the exercise of his Honour’s discretion to dismiss the matter pursuant to r 13.03C.

6. It is said that the order below was interlocutory, and that leave is necessary in order to appeal from it. Thus it is said that the notice of appeal is, in any event, invalid. Further, any application for leave to appeal is now out of time. In my view, if the appellant had any prospects of success on appeal, the Court should make orders which would enable him to proceed with the appeal. The question of whether an order is interlocutory or final is inevitably fraught with difficulties, even for lawyers. A litigant in person should not be disadvantaged for failing to recognize such a subtle distinction. However, in this case, no good purpose will be served by giving the appellant leave to appeal, or extending time for appeal. Such an appeal would be against the exercise of the discretion pursuant to r 13.03C. I see no basis for alleging error in that decision, at least on the material as it presently stands. I therefore propose to dismiss the appeal on the ground that it is misconceived. To the extent that the appellant applies for leave to appeal, I would also dismiss that application.

7. My intention in so doing is that the appellant have an opportunity to apply to the Federal Circuit Court to set aside the order of Judge Howard, presumably relying upon evidence of the kind which I have outlined.  I also propose to refer the appellant to the Queensland Public Interest Law Clearing House to obtain preliminary advice as to the commencement of such proceedings.  

8. I order that the purported appeal and the application for leave to appeal be dismissed.  I make no order as to costs.  In my ex tempore reasons, I did not give reasons for refusing to award costs against the appellant.  My reason was that the first respondent was seeking an extension of time in which to file a notice of objection to competency.  Whilst it may have been a forlorn hope, had the notice been filed in time, some costs may have been avoided.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett .

Associate:

Dated:        19 August 2014