CWW17 v Minister for Immigration (No.2)

[2018] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWW17 v MINISTER FOR IMMIGRATION (No.2) [2018] FCCA 2177

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given sufficient explanation for non-appearance – whether application would have merits if the orders set aside – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.48A, 48B

Federal Circuit Court Rules 2011 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:
CWW17 v Minister for Immigration [2018] FCCA 582.

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
AYZ15 v Minister for Immigration and Border Protection [2017] FCA 77

Applicant: CWW17

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2058 of 2017

Judgment of: Judge Manousaridis

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 1 August 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the Respondent: Ms C Saunders of DLA Piper Australia

ORDERS

1. The application in a case filed on 18 July 2017 seeking to set aside the orders of the Court made on 26 April 2018 is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $1,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2058 of 2017

CWW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from the transcript)

Introduction

1. This matter was listed today for the hearing of an application in a case filed by the applicant on 18 July 2018.  By that application in a case the applicant seeks to set aside the orders I made on 26 April 2018. By those orders I dismissed an application in the case that the applicant filed on 5 April 2018 seeking to set aside orders I made on 22 February 2018.

2. I made the orders of 26 April 2018 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). I made the orders on 22 February 2018 at a hearing at which the applicant did not appear, the purpose of the hearing being to determine the question of this Court’s competence to entertain the applicant’s substantive claim which was filed on 29 July 2017. I will later refer to that substantive claim. 

3. The applicant did not appear at the hearing of 22 February 2018, as I have said, and the orders I then made were made, not on the basis of r.13.03C(1)(c) of the FCC Rules, but after I considered the merits and gave an extemporary judgment on that occasion, which has subsequently been published (see CWW17 v Minister for Immigration [2018] FCCA 582).

4. The applicant appeared without any legal representation but was assisted by an interpreter. Before I look at the issues that arise on the application that is before me, I should say something very briefly about the manner in which the hearing was conducted before me.

Course of hearing

1. I first set out the chronology of the proceeding since the time the applicant filed the application commencing this proceeding on 29 June 2017. I then explained to the applicant what the issues were that I needed to consider. The issues I said I needed to consider concerned whether there is an adequate explanation for the applicant’s not appearing at the hearing on 26 April 2018 and, secondly, whether there would be some arguable grounds for the applicant seeking to set aside the orders that I made on that occasion. That, in turn, I informed the applicant, required me to consider the orders I made on 22 February 2018 and what that required was my determining whether there was a reasonable explanation for the applicant’s not attending the hearing on 22 February 2018 and, secondly, whether applicant had a reasonably arguable ground on the substantive question that I determined on that day; that substantive question being whether the Court has jurisdiction to entertain the application that the applicant filed commencing this proceeding. 

2. I then identified the documents that had been filed and I read the two affidavits on which the applicant relied. From that point I invited submissions from the applicant. Much of the time was taken by the applicant seeking to explain why he did not attend the hearing on 26 April 2018.  I will refer to the explanation the applicant gave in a moment. Understandably the applicant was not in a position, because he is not a lawyer, to say anything of substance, at least on the question of whether the Court has jurisdiction to determine the matters raised in the application by which the applicant commenced this proceeding. 

3. I note that the applicant said from the bar table that he has not seen the reasons for judgement I published on 22 February 2018. The application which he filed, however, does nominate an email address. He says it is the email address of a charity which has been assisting him and, as I understood him, the applicant said he assumed that whatever orders the Court made on 22 February 2018, including my reasons for judgement, would have been conveyed to that email address for the attention of the person, within that charity, whom the applicant identified as Mr Kahn, who was helping the applicant. 

4. I also, of course, heard submissions from Ms Saunders who appears for the Minister. 

Principles

1. I turn then to the principles that govern the Court’s exercise of the power which the applicant, in the application before me, seeks to invoke. And that power is contained in r.16.05(2)(a) of the FCC Rules which provides that the Court may set aside a judgment or order after it has been entered if the judgment or order was made in the absence of a party. The relevant principles were considered by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   [1] [2010] FCA 530, [7]

   In circumstances where a proceeding has been dismissed in the party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors and whether, on balance, they tend for or against the reinstatement.

   Those factors are:

   (a)Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out.

   (b)The existence and nature of any prejudice which might flow to the other party from the reinstatement and the extent, if any, to which that prejudice can be assuaged by an adjournment or order for costs or other relief which the court is in power to grant.

   (c)Whether the applicant has a reasonably arguable prospect of success on the substantive application.

2. There is a degree of complexity in applying these principles to the application before me because what is being sought to be set aside is, in fact, an order setting aside the substantive proceeding for non-attendance.  Nevertheless the principles can be adapted to apply to these circumstances and, as I informed the applicant (and ignoring the prejudice that might apply to the Minister if the application in a case is reinstated), the issues are, first, whether the applicant has given a reasonable explanation for not attending the hearing on 26 April and, secondly, whether the applicant has a reasonable prospect of success on setting aside the orders that I made on 26 April 2018. The mild complexity that arises in answering that question is that it can only be answered by reference to what occurred on 22 February 2018 and that, in turn, requires an examination of what explanation the applicant has for not attending the hearing of 22 February 2018 and, secondly, whether the applicant would have any reasonable prospects of arguing that the Court does have jurisdiction to determine the application by which the proceeding was commenced. I then turn to the explanation the applicant has given for not attending 26 April 2018.

3. There are two explanations.  One is an explanation contained in the affidavit the applicant filed on 18 July 2018.  In broad terms he there deposes as follows (errors in original):

   I was unable to attend the two-hearing depending on Justice Connect lawyer I meet in the court; the lawyer took my detail and advised me that he would contact me but despite my several telephone call to Justice connect no-one helped me to locate the lawyer I meet in court..

   On 5 April 20028, I reinstated the case which was dismissed on 26 April 2018.  I do not understand the legal system I contacted the Justice connect again seeking there help to represent me, therefore I would appreciate to reinstate my case enabling me to get help from Justice connect lawyer to represent me.

4. The second explanation the applicant gave is an explanation he gave from the bar table.  The applicant was not invited to say in the witness box on oath what he said from the bar table because Ms Saunders, who appeared for the Minister, was prepared to accept as true the explanation the applicant gave.  In my opinion that was a fair way to proceed.  At any rate, after spending a little time trying to understand exactly the explanation the applicant gave, the explanation amounted to the following. 

5. The applicant said he was expecting to come to Court accompanied by Mr Kahn, being the gentleman to whom I have already referred who is associated with a charity that has been assisting the applicant. On the day of the hearing the applicant attempted on a number of occasions to contact Mr Kahn.  By the time the applicant contacted Mr Kahn, Mr Kahn informed the applicant that there was some misadventure, the details of which it is not necessary to set out in these reasons for judgment, which prevented Mr Kahn attending or accompanying the applicant in court. By the time the applicant was informed of this the time of the hearing had passed. 

6. Ms Saunders, for the Minister, submits that this is not a reasonable explanation for the applicant not attending court. Ms Saunders also said that to the extent that the applicant relies on his not being contacted by Justice Connect Ms Saunders referred to the applicant having previously been involved in proceedings.  Ms Saunders referred to a case before the Federal Court on an appeal from this court, that case being AYZ15 v Minister for Immigration and Border Protection.[2] The applicant confirmed to me the appellant in that appeal was, indeed, him. 

   [2] [2017] FCA 77

7. In my opinion the explanation given by the applicant is not a reasonable explanation for not attending.  Not being satisfied it is a reasonable explanation, however, would not carry much weight if I were to be satisfied that there is some merit in the application to set aside the orders which I made on 26 April 2018, and it is to that question that I now turn. 

8. As I have already noted whether or not the applicant has reasonable prospects of setting aside the orders I made on 26 April depends on whether there are reasonably arguable grounds for saying he had a reasonable explanation for not attending the hearing on 22 February 2018, and whether there are reasonably arguable grounds to the effect that this Court does have jurisdiction in relation to the matter raised in the application by which the applicant commenced the proceeding. The explanation for not attending the hearing on 22 February 2018 is contained in an affidavit which the applicant filed on 5 April 2018.  In that affidavit the applicant states, among other things, that he appeared in Court on 28 September 2017 and that (errors in original):

   One of the Justice Connect solicitor approached me to represent me in appeal.  I completed Form provided all my detail and contact I was told that someone would contact me therefore I should not be worry. 

   Since September 2017 no-one contacted me from justice connect. 

   I received telephone call from immigration on 03/04/2018, that my bridging visa has been expired therefore I am seeking extension of time to reinstate my application.

9. Ms Saunders submitted that that does not disclose a reasonable explanation for not attending the hearing.  I agree. The applicant ought to have made it his business to understand what was happening in his case which he initiated, and simply waiting for five months without making any inquiry about what was happening in his proceeding is not reasonable conduct. But, again, the applicant’s not providing any reasonable explanation for his not attending the hearing of 22 February 2018 would not carry great weight with me, if the applicant had some arguable case that this Court does have jurisdiction to hear the application; and, really, that is the main question that arises on the application in a case that is before me today.

10. The application by which the applicant commenced this proceeding is directed to a decision contained in a letter dated 6 April 2017 from the Department of Immigration and Border Protection (Department). That letter advised the applicant of the outcome of a request for Ministerial intervention under s.48B of the Migration Act 1958 (Cth). The outcome stated in that letter is that the applicant’s request was assessed against the “Minister’s guidelines – s48A cases and requests for section 48B Ministerial intervention”, but that the request did not meet those guidelines. The letter concluded that the applicant’s request “has therefore been finalised by the Department without referral”.

11. The application the applicant filed commencing this proceeding identifies the migration decision to which it relates as “a future decision”. In the affidavit that accompanied the application there is attached the letter dated 6 April 2017 to which I have already referred. It therefore is clear that the application which the applicant filed on 29 June 2017 is directed to the decision recorded in the letter. The substantive issue that was raised at the hearing that was before me on 22 February 2018 was whether this Court has jurisdiction to entertain an application, such as the one filed by the applicant, that is directed to a decision made by an officer of the Department that a request for Ministerial intervention under s.48B of the Act has not been referred to the Minister.

12. I considered that question in the reasons for judgment which I delivered ex tempore on 22 February 2018.[3] The applicant, for reasons that are understandable, given he is not a lawyer, made no submissions in relation to the reasons disclosed in my reasons for judgment for my concluding that the Court does not have jurisdiction to entertain the application.  For reasons which I have set out in those reasons for judgment it is beyond argument that this Court does not have jurisdiction to entertain an application directed to decisions such as the decision contained in the letter dated 6 April 2017 which is attached to the applicant’s affidavit which he filed at the time he commenced the proceeding.

    [3] CWW17 v Minister for Immigration [2018] FCCA 582

13. I should refer to the submission the applicant made in reply. The applicant referred to his being informed either directly or indirectly, it is not necessary to be clear about that, that he might have some legal argument in relation to the decision the Refugee Review Tribunal (RRT) made in connection with an application for protection that was before it and which concerned the applicant.  That decision is not before me but it appears to be the decision which is referred to in the judgment of Burley J in AYZ15 v Minister for Immigration and Border Protection.[4] As a result of my asking further questions it did not appear to me that the applicant intended to attach significance to the question of this Court’s jurisdiction of advice that he may have received about whether he had an argument in relation to the RRT’s decision.  It is difficult to see how any such legal advice could have any relevance to this Court’s jurisdiction. The application the applicant filed is not directed to the decision the RRT made.  It is directed to a Departmental decision not to refer an application for Ministerial intervention.

    [4] [2017] FCA 77

14. The applicant also referred to the fact that he is in financial hardship.  He has a lack of money, and this prevented him from pursuing through legal representation what may have been a legal basis for challenging the RRT’s decision.  Whilst, of course, I have sympathy for any financial hardship the applicant is suffering, that he was unable because of that hardship to engage legal representation to challenge the RRT’s decision is a matter that is not relevant to whether this Court has jurisdiction to hear the application which the applicant filed.

15. For these reasons, and overwhelmingly for the reason that I am of the opinion that it is simply not arguable that the Court has jurisdiction to entertain the application the applicant filed on 29 June 2017, I am of the opinion that the application in a case which the applicant filed on 18 July 2018 seeking to set aside the orders I made on 26 April 2018 must be dismissed and, in a moment I will make an order dismissing that application, but I will first hear the parties on costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 August 2018