Lal v Minister for Immigration and Border Protection (No 2)

In the case of Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892, the applicants, Madan Lal and Sharmila Devi, sought to appeal a decision of the Federal Circuit Court which had dismissed their application for leave to appeal and an extension of time. The applicants, who are self-represented, filed an interlocutory application seeking to set aside the orders made by the Federal Court on 17 June 2014. However, neither applicant attended the hearing of the interlocutory application, which was scheduled for 18 August 2014. The Minister for Immigration and Border Protection argued that the Court had the power to proceed with the hearing and determine the application in the absence of the applicants.

The primary legal issue the court had to address was whether the Court had the power to hear and determine the interlocutory application in the absence of the applicants. The court found that it did have such power, either pursuant to an inherent power, or pursuant to rules 17.04 and 35.32 of the Federal Court Rules 2011 (Cth). The court also considered the applicants' reasons for their absence from the hearing on 17 June 2014, and whether they had a reasonably arguable case for the relief sought. The applicants claimed that they were unable to attend the previous hearing due to health issues, but the court found that they had not provided a proper explanation for their absence or established a reasonably arguable case for setting aside the previous orders.

The court noted that the applicants had not provided any corroborative evidence of their claimed health condition, and that the first applicant had attended the Registry of the Court on 8 July 2014 to file the interlocutory application and have his affidavit witnessed. Furthermore, the court found that the applicants had not established that it was reasonably arguable that the Federal Circuit Court Judge had erred in concluding that the jurisdiction of that Court had not been enlivened. The court held that the applicants' reliance on various matters in their affidavit was an attempt to engage the Court in a form of merits review, which was not the function of the Court. For these reasons, the court dismissed the interlocutory application and ordered the applicants to pay the costs of the first respondent in the sum of $600.

In conclusion, the Federal Court found that it had the power to hear and determine the interlocutory application in the absence of the applicants and dismissed the application on its merits. The court emphasised that the applicants needed to provide a proper explanation for their absence and establish a reasonably arguable case for the relief sought. In this case, the applicants had failed to do so, and the court found that it was not an appropriate case in which the Court should exercise its discretion under rule 39.05 to set aside its previous orders of dismissal.