FBS18 v Minister for Home Affairs & Anor (No.2)
[2019] FCCA 1655
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FBS18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) | [2019] FCCA 1655 |
| Catchwords: MIGRATION – Application for reinstatement of a show cause application which had been dismissed on account of the applicant’s non attendance – serious question to be tried on the show cause application – applicant found to be untruthful on his affidavit concerning the events relating to his non attendance – dismissal of reinstatement application. |
| Cases cited: FBS18 v Minister for Immigration & Anor [2019] FCCA 1315 |
| Applicant: | FBS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2772 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Mills Oakley |
INTERLOCUTORY ORDERS
The name of the applicant is not to appear on the transcript of today’s proceedings.
The Application in a Case filed on 22 May 2019 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,850.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2772 of 2018
| FBS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 22 May 2019. The applicant seeks to set aside or vacate orders I made on 17 May 2019. I ordered that the substantive application be dismissed on account of the applicant’s non-attendance and also made a costs order.
The application is supported by an affidavit by the applicant filed with it. The applicant was cross-examined at some length on that affidavit.
The application is opposed by the Minister. The Minister relies upon the affidavit of David Baddeley made on 12 June 2019 and the affidavit of Jami Daddo made on the same day. The applicant required both of those deponents for cross-examination.
The circumstances in which the application was dismissed on 17 May 2019 are somewhat unusual. Those circumstances are detailed in my judgment reported as FBS18 v Minister for Immigration & Anor.[1] That decision reflected my understanding of the circumstances at that time. Essentially, it appeared to me at that time that the applicant was, for some reason, avoiding attending court.
[1] [2019] FCCA 1315
In his affidavit, the applicant asserts, essentially, that he failed to attend court because it was unclear to him where he needed to go. Unfortunately for the applicant, his evidence has been established to my satisfaction to be substantially untruthful.
My decision on 17 May 2019 was based upon what I had been told about various conversations with the applicant and related events. The affidavits on either side, for the most part, provide only indirect evidence of relevant conversations. However, one conversation was recorded on the Court recording system because it occurred in court while I was not on the bench. That was a conversation between the applicant and the interpreter booked for the hearing which occurred between 10.21am and 10.24am on 17 May 2019. That recording was played in court twice and I took evidence from the interpreter booked for today’s hearing as to what was said in it in the Tamil and English languages.
I gave the applicant the opportunity in chief to amend his affidavit in the light of that conversation as played to him. He declined to make any changes. In essence, the applicant’s account as augmented under cross-examination is that on 17 May 2019, because he was uncertain as to the location of the Court he should attend, he went first to the Court registry at Queen’s Square. He was told there that that was not the right place and he went from there to the office of the Minister’s solicitors, which address he had. He says he then spoke to a female who told him that his application had been dismissed. He then went to Wynyard Station at about which time he had the conversation I have referred to with the interpreter. His intention was to return home, but on being told that he could still attend court, he undertook to come to court in around 10 minutes.
In his affidavit, the applicant denied being told by the interpreter of the location of the Court. Under cross examination, he admitted that the location was given, but maintained that it was unclear. On the applicant’s account, on being told he could come to court, he returned to the registry at Queen’s Square and was eventually given the address of the Court in writing. He then proceeded to Court only to find that his application had been dismissed.
The applicant’s evidence has been established to my satisfaction as untruthful on several bases. First, he admitted being given a copy of orders made by a registrar at the first court date which provided the correct location of the Court. Secondly, despite what was in his affidavit, he admitted in response to questions from me that he received an email from my Deputy Associate on 1 May 2019 providing a variation of the registrar’s orders and repeating the location of the Court. Thirdly, I accept the evidence of Ms Daddo that when she spoke to the applicant at the office of the Minister’s solicitors, she told the applicant of the correct address of the Court and provided him with a letter which had previously been sent to him confirming that location.
Further, exhibit C1 is an email from the Court registry to my Associate at 11.09am on 17 May 2019. That email relevantly states that the applicant had attended the registry and was advised that he should be at 80 William Street. He walked out without saying anything. On his account, it then took him the greater part of an hour to walk the short distance from Queen’s Square to William Street.
These facts confirm my suspicion as at 17 May 2019 that the applicant was, for some reason, determined to see his application dismissed on account of his non-attendance. Those circumstances are corroborated by the affidavit of the Minister’s solicitor, Mr Baddeley.
The applicant has been foolish, because there was a serious issue to be tried in his substantive application. Because I accepted there was a serious issue to be tried, I had made orders on 1 May 2019 dispensing with a show cause hearing and listing the matter for a final hearing. If the applicant had given a truthful account of the circumstances of his non-attendance, I would have been minded to reinstate his application. However, the Court cannot and will not reward mendacity.
In my view, the applicant got what he wanted, which was the dismissal of his application for non-appearance. The interests of the administration of justice do not call for a reinstatement of his application in these circumstances.
I will order that the Application in a Case filed on 22 May 2019 be dismissed.
In consequence of the dismissal of the Application in a Case, the Minister seeks an order for costs fixed in the sum of $2,850. The applicant stated that he would pay the costs, but he would need time to pay. That is a matter he can take up with the Minister’s Department.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $2,850.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 19 June 2019