CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1955
•23 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1955
File number(s): BRG 363 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 23 August 2021 Catchwords: CITIZENSHIP AND MIGRATION – Migration – Protection visa – application for judicial review – application dismissed for want of appearance – application to set aside dismissal order – no merit in principle application – application to set aside dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 16.05(2)(a) Cases cited: Clifford & Mountford (2006) 219 FLR 437
COA17 v Minister for Immigration and Border Protection [2018] FCA 1330
Gill v Minister for Immigration and Border Protection [2018] FCCA 569
SZTUQ v Minister for Immigration and Anor [2016] FCCA 2889
Number of paragraphs: 25 Date of last submission/s: 9 April 2021 Date of hearing: 9 April 2021 Place: Brisbane The Applicant: In person Solicitor for the Respondents: Clayton Utz ORDERS
BRG 363 of 2020 BETWEEN: CYZ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
23 AUGUST 2021
THE COURT ORDERS THAT:
1.The application a case filed on 15 March, 2021 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application a case fixed in the sum of $798.
REASONS FOR JUDGMENT
JUDGE JARRETT:
On 28 June, 2020 the applicant filed an application for judicial review of a decision of the second respondent. That decision affirmed the decision of a delegate of the first respondent to refuse the applicant a protection visa.
On 30 July, 2020 a registrar made programming orders for the purposes of preparing the application for rehearing. Those orders were in the usual terms. They required the first respondent to file a book of documents, gave the applicant the opportunity to file an amended application if he so chose and made provision for the orderly delivery of written submissions in preparation for the final hearing.
The final hearing was fixed before me on 29 January, 2021. On that day, the applicant failed to appear. In that event, I ordered that the application be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
On 15 March, 2021 the applicant filed an application in a case in which he seeks that the order made on 29 January, 2021 be set aside pursuant to r.16.05(2)(a) of the Rules. He filed an affidavit in support of that application. In that affidavit he deposes that he thought that the court would ring him on 29 January, 2021 at 12:15pm – the time and date appointed for his final hearing. He said that he did not get a phone call from the court and hence he missed the hearing. He swears that he is unable to read and write effectively and one of his friends was supposed to come and help him with the court hearing but he was late as he was looking after his little children. The applicant says that he operated under the assumption that the court was going to contact him for the hearing. He says that on the day of the hearing he was ready and prepared however he received no calls from the court. Despite the applicant’s claimed difficulty with reading and writing in English language his affidavit in support of the application was not translated to him and bears no jurat by a translator.
The first respondent opposes the application and submits that the Court is vested with the power to exercise its discretion to set aside the order of 29 January, 2021 in the proceedings. However, the first respondent argues that to “trigger the exercise of such a discretion”:
(a)the applicant must establish good or exceptional reasons for the Court to exercise its discretion favourably; and
(b)it is relevant to have regard to all the circumstances, in particular the explanation for the applicant’s non-attendance and whether there is a reasonably arguable case or a real dispute such that the interests of justice require that the applicant be given the opportunity to present his case: SZTUQ v Minister for Immigration and Anor [2016] FCCA 2889, [17]-[22]; COA17 v Minister for Immigration and Border Protection [2018] FCA 1330 at [23] and Gill v Minister for Immigration and Border Protection [2018] FCCA 569.
The discretion conferred on the Court by r.16.05(2)(a) is unfettered, but is nonetheless to be exercised judicially, bearing in mind the public interest in there being an end to litigation. It is not a discretion to be exercised lightly and without good reason. In Clifford & Mountford (2006) 219 FLR 437 I identified some matters that might often be relevant in such applications. Without intending to be prescriptive or exhaustive those matters commonly relevant might be seen as:
(a)a reasonable explanation for the applicant's absence at the trial or hearing;
(b)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
(c)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
Relevant to those considerations might be issues such as:
(a)whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
(b)delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it; and
(c)the conduct of the applicant since the judgment or order sought to be set aside was made.
CONSIDERATION
The respondent submits that the applicant has not satisfied the threshold that would warrant the discretion being exercised. I am not sure that there is a “threshold” as such. Rather I think what is submitted is that the facts of the matter do not lead to the favourable exercise of discretion in the applicant’s favour.
The applicant provides the following reasons in his affidavit:
1. The original hearing was set on Friday 29th January 2021 at 12:15pm. I thought that the Court would ring me at this time, I did not get a phone call from the court. Hence, I missed the hearing. As such Judge Jarrett dismissed my application on the grounds that I did not make an appearance.
2. I am unable to read and write effectively and one of my friends was supposed to come and help me with the Court hearing but he was late as he was looking after his little children. By the time he came the case had been dismissed by Judge Jarrett.
3. I operated under the assumption that the court was going to contact me for the haring. The day of the hearing, I was ready and prepared, however, I received no calls from the court. As I did not call the court on the hearing day as it was scheduled my hearing got dismissed.
In his affidavit the applicant provides a copy of a letter from a friend which reads:
To whom it may concern,
With due respect, I confirm that on 29 January 2021, I, Mohammad Raihan of 33 Smith Street, Gatton, QLD 4343 was supposed to help (with telephone call from court) my friend [CYZ20] with his court hearing as he is almost illiterate (cannot read or write effectively) but I was late to attend his place due to my family matters (looking after my child).
If you have any inquiries, please do not hesitate to contact me.
The respondent submits that the reasons provided by the applicant are not sufficient to warrant a reinstatement as:
(a)on 21 December, 2020 the Court notified the parties of the listing on 29 January, 2021; and
(b)on 22 January, 2021 the parties were advised by email that the matter would proceed by telephone. The email noted that instead of the Court calling each party individually, the parties would need to dial in for the hearing and that failure to do so may result in the matter proceeding in the parties' absence and orders being made. “Dial in details” for the hearing were provided.
The respondent submits that the applicant ought to have been aware that by being provided with a copy of the dial in details for the hearing that it was incumbent upon the applicant to call the Court for the hearing. It is clear from his own evidence that the applicant had received the communication from the Court about the hearing date and the subsequent communication that the hearing would take place by telephone.
The applicant had an opportunity to arrange and did arrange assistance for the hearing.
The respondent submits that the reasons provided by the applicant are not sufficient to warrant reinstatement.
In my view the facts as deposed by the applicant permit of a finding that there was a misunderstanding or a failure to comprehend the instructions that were provided for the telephone hearing. I accept what it is that the applicant says about these matters. He provides an explanation for his failure to appear.
There will be obvious prejudice to the applicant if the orders of 29 January, 2021 are not set aside. He will not have the opportunity to agitate his application for judicial review as he now wishes to do. It was not submitted that there would be any prejudice to the Minister if the orders were set aside although there are obvious cost consequences and imposition on the public interest in the finality of litigation.
There is a delay between the dismissal of the applicant’s proceeding on 29 January, 2021 and the filing of this application on 15 March, 2021. Whilst the delay is not particularly egregious, it is unexplained.
In his application filed on 28 June, 2020 the applicant specified one ground of review as follows:
1. The Administrative Appeals Tribunal and the delegate of the Minister for Home Affairs erred in law in making his decision.
The ground of review is devoid of any content. The applicant did not amend his application when he had the opportunity to do so. Nor did he suggest that he intended to amend his application.
When I asked the applicant to identify the error in the second respondent’s decision, he said that he could not do so because he was not educated in such matters. What he was sure about was that if he returned to his country of origin he would either be killed or would face discrimination. That is to say, he wished to argue that the second respondent had got the merits of his case wrong, rather than that it made any legal error.
Having considered the second respondent’s reasons for decision, I cannot identify any legal error, let alone jurisdictional error in those reasons.
I am not certain that the applicant has available to him any material arguments that might reasonably lead to the making of an order different to that sought to be set aside.
The applicant’s principal application does not disclose a reasonably arguable case.
CONCLUSION
The interests of justice do not require that the orders made on 29 January, 2021 be set aside and the applicant be given the opportunity to present the case that he now wishes to present. Whilst he has provided an explanation for his failure to appear on 29 January, 2021, there are no material arguments available to him that would suggest that the result in the principal proceeding would be any different to the orders made on 29 January, 2021. It is not in the interests of the administration of justice to set aside the orders of 29 January, 2021 with the attendant cost and imposition upon the business of the court that that will bring.
Accordingly, the application in a case filed on 15 March, 2021 is dismissed. The first respondent should have its costs of that application fixed in the sum of $798.00.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 23 August, 2021. Associate:
Dated: 23 August 2021
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