Kishore v Minister for Immigration & Anor
[2007] FMCA 1644
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KISHORE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1644 |
| MIGRATION – Visa – Employer Nomination (Residence) (Class BW) visa. PRACTICE & PROCEDURE – Setting aside order – where applicant failed to attend court – failure to attend court not due to any fault by the applicant – error by court registry – consent orders dismissing application. |
| Migration Act 1958 (Cth) s.91X Federal Magistrates Court Rules 2001 Rules 13.03A,16.05 |
| Registrar of Aboriginal Corporations v Murnkurni Womens Aboriginal Corporation (1995) 58 FCR 125 referred to. Simpson v Alexander (1926) 26 SR (NSW) 296 referred to. Grey v Mango Prepaid Calling Card Pty Ltd [2004] FCA 1664 referred to. Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd’s Rep 221 referred to. SZBXX v Minister for Immigration and Multicultural Affairs [2005] FCA 823 Capital Webworks Pty Limited v AdultShop.Com. Limited & Ors [2002] FCA 389 referred to. Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 referred to. NACA v Minister for Immigration (No 2) [2003] FMCA 234 referred to. Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 followed |
| Applicant: | NAND KISHORE |
First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1147 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Applicant: | Nil (direct brief) |
| Solicitor for the Respondent | Ms Kantaria |
| Solicitors for the Respondent | Clayton Utz |
ORDERS
Orders 1 and 2 made on 24 May 2007 are set aside.
The Application under Migration Act filed on 5 April 2007 is reinstated.
The Applicant is granted leave to file an amended application.
The Application is listed for Final Hearing on Tuesday 11 December 2007 at 10:00am before Federal Magistrate Scarlett in Court 7B, level 7, John Maddison Tower at 88 Goulburn Street, Sydney 2000.
I DIRECT the First Respondent must file and serve a bundle of relevant documents also known as a Court Book (or Green Book) by 26 October 2007.
The Applicant must file and serve a short Written Outline of Submissions and List of Authorities fourteen (14) days before the hearing.
The First Respondent must file and serve a short Written Outline of Submissions and List of Authorities seven (7) days before the hearing.
The Applicant must pay the Setting-down fee or obtain a waiver of that fee no later than fourteen (14) days before the Final Hearing date. The Setting-down fee is to be paid to the Collector of Public Moneys, Federal Magistrates Court of Australia, Level 16, Law Courts Building, Queens Square, Sydney, NSW 2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1147 OF 2007
| NAND KISHORE |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a national of India, asks the Court to set aside a decision made on 24th May 2007 dismissing his application for review of a decision by the Migration Review Tribunal. The application was dismissed under Rule 13.03A by reason of the Applicant’s failure to appear.
The application is opposed by the First Respondent, the Minister for Immigration and Citizenship, on the basis that the Applicant has not established that there is any merit to his substantive application. The Minister concedes that the Applicant has given an explanation for his failure to attend that did not involve fault on his part.
Background
The Applicant commenced his original proceedings on 5th April 2007 by filing an application and an affidavit in support. In that application he sought judicial review of a decision of the Migration Review Tribunal signed on 22nd February and handed down on 7th March 2007. The Tribunal affirmed the decision of a delegate of the Minister finding that the Applicant was not entitled to the grant of an Employer Nomination (Residence) (Class BW) visa.
There is no issue as to the fact that, due to an error in the Court Registry, the Applicant was given a pseudonym, SZKME, and the proceedings were then referred to as SZKME v Minister for Immigration and Multicultural and Indigenous Affairs & Anor. This was clearly an error, as the Applicant was not a person who had applied for a protection visa and s.91X of the Migration Act 1958 did not apply to him. The proceedings should have been listed in his own name as Applicant.
The Applicant deposed in his affidavit filed on 27th July 2007 that he received a sealed copy of his application from the Registry but when he went to the Department to renew his Bridging visa the immigration officer kept the document. He remembered that he had to go to Court on 24th May but when he attended the Court he could not find his name on the Court list. Consequently, he did not attend Court when his matter was called.
When the Applicant did not attend Court, the application was dismissed with costs under the provisions of Rule 13.03A.
The Applicant then on 31st May 2007 brought an application asking that the orders of the 24th May 2007 be set aside. He filed an affidavit on that same day, setting out his explanation for the fact that he did not appear on 24th May.
That application came before the Court on 3rd July 2007. On that occasion, his present counsel appeared. The Minister opposed the application to reinstate. After some discussions between counsel for the Applicant and the solicitor for the Minister, the Court made the following orders by consent:
a)The Applicant’s application filed on 5 April 2007 pursuant to r.16.05 of the Federal Magistrates Rules 2001 is dismissed.
b)The Applicant is to pay the costs of the First Respondent in the agreed sum of $1,250.00.
c)The name of the Applicant be amended from ‘SZKME’ to ‘Nand Kishore’.
The Applicant then filed a Notice of Motion and an affidavit in support on 27th July 2007. Again, the Applicant sought an order setting aside the decision made on 24th May 2007. He also sought an order that his application be reinstated or restored to the list and further directions for the conduct of the proceeding.
The Applicant’s affidavit contained the same explanation about the circumstances, but this time there was a draft amended application annexed. The draft amended application contains four grounds of review together with particulars of those grounds.
The Notice of Motion was listed before the Court on 27th September 2007. Mr Kumar of counsel appeared for the Applicant and Ms Kantaria, solicitor appeared for the Minister.
Submissions
Mr Kumar submitted for the Applicant that the case law required that the Applicant should show:
a)an explanation for the failure to attend Court when required; and
b)an arguable case.
He also submitted that there may be a third consideration, that there be no prejudice to the Respondent if there is a reinstatement. He referred the Court to the decision of Nicholson J in Registrar of Aboriginal Corporations v Murnkurni Womens Aboriginal Corporation[1] and the decision of Street CJ in Simpson v Alexander[2].
[1] (1995) 58 FCR 125
[2] (1926) 26 SR (NSW) 296
Mr Kumar submitted that the Applicant had provided a satisfactory explanation for his failure to attend Court.
Mr Kumar then submitted that an applicant must also show an arguable case for the relief claimed in the substantive application. “Arguable” means that the claims made by the Applicant must have some degree of conviction or are credible with some prospect of success (see Grey v Mango Prepaid Calling Card Pty Ltd;[3] Alpine Bulk transport Co Inc v Saudi Eagle Shipping Co Inc[4] and Registrar of Aboriginal Corporations v Murnkurni Womens Aboriginal Corporation).
[3] [2004] FCA 1664 at [51]
[4] [1986] 2 Lloyd’s Rep 221 at 223
Mr Kumar submitted that the proposed amended application would raise arguable grounds in respect of the Applicant’s claim. He went to submit that in looking at this and in particular unparticularised pleadings, the court should consider the comments of Gyles J in SZBXX v Minister for Immigration and Multicultural Affairs[5]:
I appreciate that an application was made to the learned Federal Magistrate to dismiss the proceedings as not disclosing a cause of action and I also note that there was an order that there be further particulars given. However, both the relief sought and the grounds which are included in the application are perfectly conventional, albeit lacking some particulars and, in my opinion, it could not have been said that there was no reasonable cause of action disclosed on the face of the pleading. I do not deal here with the wider question as to the making of self-determining orders and the power to do so.[6]
[5] [2005] FCA 823
[6] [2005] FCA 823 at [6]
Mr Kumar submitted that in the circumstances the Court has to hear the matter to determine whether the Applicant was able to raise jurisdictional errors to make orders for relief as sought by the Applicant rather than simply dismissing the application for lack of attendance.
Mr Kumar submitted that delay in making an application is not an issue in this proceeding. He further submitted that there is no prejudice to the First Respondent in if the matter were reinstated.
Mr Kumar told the Court that when his client entered into consent orders dismissing the application on 3rd July 2007, it was the Applicant’s interlocutory application that was sought to be dismissed, not the substantive application. He asked the Court for an opportunity for his client to have his case heard on its merits.
For the First Respondent Minister, Ms Kantaria submitted that if the Applicant wished to have his case heard on its merits, he had the liberty to appeal.
Ms Kantaria also referred to the written outline of submissions prepared for the hearing on 3rd July 2007. She referred the Court to the decision of Nicholson J in Capital Webworks Pty Limited v AdultShop.com Limited & Ors[7], where his Honour noted that the discretionary power entrusted to the Court required the existence of “exceptional” circumstances, referring to the decision of the Full Court of the Federal Court in Wati v Minister for Immigration and Multicultural Affairs[8] where it was said:
The authorities there referred to stressed the need for great caution in the existence of circumstances which are quite exceptional.
[7] [2002] FCA 389
[8] (1997) 148 ALR 578
In considering whether exceptional circumstances exits, the relevant matters are:
a)whether there was any explanation for the Applicant’s failure to attend on the last occasion that did not involve fault on his part; and
b)whether the Applicant’s case has any merit, in the sense that he has established a prima facie case.
Ms Kantaria referred the Court to the decision of Raphael FM in NACA v Minister for Immigration (No 2).[9]
[9] [2003] FMCA 234
While Ms Kantaria conceded that the Applicant had given an explanation for his failure to attend that did not involve fault on his part, she submitted that he had not established that there is any merit to his proceeding and, accordingly, has failed to make out the requisite ‘special circumstances’, noting the need for ‘great caution when setting aside sealed orders. She then proceeded to examine the Applicant’s claims in his original application and his affidavit in support. She then considered the Migration Review Tribunal’s decision and submitted that if the Applicant sought to do no more than rely upon the grounds articulated in the originating process then the application was without any merit and the reinstatement application should be refused.
Conclusions
In this matter, it is clear that the Applicant was confused by an error in the Court Registry which meant that his application was wrongly assigned a pseudonym. It is conceded by the Minister that this was a circumstance that led to the Applicant’s failure to attend Court.
In my view, an error by the Court that led to the Applicant’s application being dismissed is of itself an exceptional circumstance.
In considering the approach to be taken by the Court, I have considered the principles set out by Kirby J in Lindon v Commonwealth of Australia (No 2)[10], his Honour was considering an application for summary dismissal:
[10] (1996) 136 ALR 251
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief…is rarely and sparingly provided.
2. to secure such relief, the party seeking it must show that that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a case that is clearly frivolous or vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising case into a successful judgment.
4. (Not relevant)
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.
6. The guiding principle is…doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[11]
[11] (1996) 136 ALR 251 at 255-256
Whilst his Honour’s comments were made in the context of an application for summary dismissal, I consider that they are equally relevant to the matter before me, where it is common ground that the Applicant did not attend Court when his matter was called through no fault of his own, but through an error on the part of the court itself.
It is not relevant that this is the Applicant’s second application for reinstatement under Rule 16.05. His first application was not dealt with on its merits but was the subject of consent orders. It is a mystery as to why the Applicant’s counsel entered into those orders by consent, including a costs order. The consent order that was made was clearly intended to dismiss the interlocutory application, although it refers to the filing date of the substantive application. This is obviously an error, because an order to dismiss the substantive application would have been a nullity, as it had already been dismissed on 24th May 2007.
The Applicant has never had a chance to have his substantive application heard on its merits, such as they are. The application had come before the Court for the first time on 24th May 2007. It would not have been heard to finality that day. It would either have been set down for a Final Hearing or, if the First Respondent had so applied, for a “Show-cause” Hearing on another occasion. Unfortunately, due to the Court’s error, the Applicant did not attend and his application was dismissed.
The Applicant not only seeks to have his substantive application reinstated, he seeks to file an amended application. This application sets out new grounds, namely:
a)failure to comply with section 359A of the Migration Act 1958;
b)breach of ss.347, 348 and 360 of the Migration Act;
c)applying the incorrect policy; and
d)failing to take account a relevant consideration.
These new grounds, if the Applicant is able to argue them, may or may not be successful. The Applicant’s case, as he now wishes to argue it, may still appear weak, but it does not appear to me to be frivolous or vexatious or necessarily doomed to fail.
The Applicant has not been guilty of undue delay in seeking to have his application reinstated.
I am not of a view that the Minister would be unduly prejudiced by having to argue this case at a Final Hearing, when the case could be given a Final Hearing date within the next twelve weeks.
The guiding principle is doing what is just (see Lindon v Commonwealth of Australia (No.2). The Applicant is seeking to argue his case for a visa to stay in Australia against the Commonwealth Government. He has not had an opportunity to argue his claim on its merits and was the victim of an unfortunate error by the Court itself, which led to his missing his case when it was called.
To say to an applicant that whilst it was an error by the Court that led to his case being dismissed in his absence but he should not be allowed to have his case reinstated because he would not have won anyway does not, to my mind, do anything to inspire confidence in the administration of justice.
As I said, the guiding principle is doing what is just. In my view, the interests of justice are best served by granting the application for reinstatement and setting aside the orders dismissing the substantive application.
The Applicant consented to the order for costs made on 3rd July 2007. I do not propose to discharge that order.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 2 October 2007
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