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

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.
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

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.
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.
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).
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

I first set out the chronology…

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.

Continue reading CWW17 v Minister for Immigration (No.2)

Details

AGLC: CWW17 v Minister for Immigration (No.2) [2018] FCCA 2177
Case: [2018] FCCA 2177
Decision Date: 1 August 2018

CaseChat Overview and Summary

The applicant, CWW17, sought to set aside orders made by the Federal Circuit Court in their absence. The Minister for Immigration was the respondent. The core of the dispute concerned whether CWW17 had provided a sufficient explanation for their failure to appear at the hearing where the original orders were made, and whether their underlying application would have had merit if the orders were set aside.

The primary legal issue before Judge Manousaridis was whether the applicant had demonstrated sufficient grounds to justify setting aside the previous orders. This involved assessing the adequacy of the explanation provided for the non-appearance and, crucially, considering the potential merits of the substantive application that would be revived if the setting aside application were successful.

His Honour applied the principles governing applications to set aside default orders, which require a party seeking such relief to provide a reasonable explanation for their absence and to show that their case has an arguable prospect of success. After considering the evidence and submissions, Judge Manousaridis found that the explanation offered by CWW17 for their non-appearance was not sufficiently compelling. Furthermore, His Honour concluded that the substantive application lacked sufficient merit to warrant setting aside the existing orders.

Consequently, the application to set aside the orders made in the absence of the applicant was dismissed.

Orders