DHA16 v Minister For Immigration and Anor (No.2)

[2019] FCCA 591

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHA16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 591

Catchwords:
MIGRATION – Application in a case to set aside judgment – application withdrawn – no order as to costs.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(e), 16.05(2)

Applicant: DHA16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 548 of 2016

Judgment of: Judge Vasta

Hearing date: 27 February 2019

Date of Last Submission: 27 February 2019

Delivered at: Perth

Delivered on: 27 February 2019

REPRESENTATION

Solicitors for the Applicant: Sydney West Legal and Migration

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Applicant be granted leave to withdraw his Application filed 24 December 2018.

2. That there be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 548 of 2016

DHA16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 30 November 2018, this matter was listed before me.  There was, on the record, an originating application which detailed the grounds upon which the Applicant sought review in this Court.  There was also an amended originating application. 

2. As I noted at the time, the Applicant had a solicitor on the record up until a week before the hearing and then the solicitor withdrew and the Applicant himself submitted a notice of address for service.  He did not attend the hearing.

3. I proceeded pursuant to r.13.03C(1)(e) and heard the matter generally. I gave full reasons ex tempore and those reasons have been transcribed into a seven page judgment which has now been published.

4. On Christmas Eve, the Applicant filed an interlocutory application asking for the Court to vacate the order that I had made. It asked that the Court set aside the order that I had made because it had been made in the absence of a party.  There was also an application that leave be granted to amend the application to include the additional grounds.

5. Rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) says that:

   (2)The Court … may vary or set aside a judgment or order after it has been entered if:

   (a) it was made in the absence of a party …

6. The word “may” in r.16.05(2) connotes that it is a purely discretionary exercise. And one would think that such an order would be easily made if a Court had proceeded under r.13.03C(1)(c) if it had dismissed the application without going into the merits.

7. But that is not what happened on 30 November.  I did detail all the merits of the application as it was before the Court and dismissed the matter.

8. Upon the application in a case being lodged, a supporting affidavit was also lodged by the legal representative who appears before me today, Mr Taylor.  Mr Taylor states this in paragraph 2:

   …on Saturday 15 December 2018, I met with the applicant … the applicant stated that there may have been a misunderstanding in his conversation with his previous lawyer … the applicant states it was his understanding that his attendance was not required at the court in Perth for the hearing on 30 November 2018 … he further states that it was his understanding that the case would be determined on its merits and that he would be informed of the outcome -

9. That statement is correct in that, whilst his attendance certainly was required, it was not mandatory and if he did not appear at the Court, it was well and truly open for the Court to determine the case on the merits.  His understanding in that respect was absolutely correct because that is what happened. 

10. Mr Taylor in his affidavit talks of a number of matters that were not the subject of submission or even consideration by the Immigration Assessment Authority (“the IAA”). 

11. Mr Taylor has submitted, in a very short concise manner, that there is error in the IAA decision because there were matters that were not properly considered, however, those observations are not easily apparent on the face of the material that I had before me on 30 November 2018. 

12. Whilst it would still be a matter for my discretion, it is an extremely high bar and I am certainly not inclined to reopen a matter that I have fully canvassed and made a decision upon, especially when it is after my decision had been made that the Applicant spoke to Mr Taylor, who is his current legal representative.

13. It seems to me that the proper avenue for the Applicant is an appeal of the decision that I had made. 

14. There is another aspect to this, that if it were that I heard the application pursuant to r.16.05(2) and declined to reopen the matter, it would then need the Applicant to convince the Federal Court that my decision not to reopen the matter was affected by jurisdictional error. Considering that the power to reopen is a purely discretional power and the current circumstances of how it is that Mr Taylor came to be the legal representative of the Applicant after my decision had been made and published, it would seem to me to be an extremely high bar for the Applicant to then jump.

15. If, however, I were to allow the applicant to withdraw the application, this would preserve the rights he had to appeal as of right against my decision. 

16. It seems to me that that would be a course that firstly should have been followed to start with rather than coming back to this Court, but also one that is in the best interests of the Applicant himself. 

17. Therefore I will allow this application to be withdrawn and that obviously does not affect at all the rights that the Applicant had to appeal my decision of 30 November 2018.

18. In the circumstances, whilst it is said that the Minister has been put to the trouble of appearing, the Minister did not file any material and has simply turned up to meet what the argument is.  Whilst there has been some expending of costs, it seems to me that this is because of a misunderstanding by the legal representative of the Applicant as to the power that I used to come to the decision in the first place. 

19. Again, this is a discretionary matter and in all the circumstances, I decline to make a costs order against the Applicant.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 May 2019