MZZWU v Minister for Immigration
[2015] FCCA 2443
•24 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZWU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2443 |
| Catchwords: MIGRATION – Application for judicial review – application to set aside orders dismissing application pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03(c), 13.03C, 13.03C(1)(c), 13.03C(1)(d), 16.05(2)(a) |
| Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 |
| First Applicant: | MZZWU |
| Second Applicant: | MZZWV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2137 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 2 September 2015 |
| Date of Last Submission: | 2 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
Leave be granted to amend the name of the second respondent to ‘Administrative Appeals Tribunal’.
The application in a Case filed 16 June 2015 be dismissed.
The applicant pay the first respondent’s costs fixed in a sum of $3,149.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2137 of 2013
| MZZWU |
First Applicant
| MZZWV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed 5 December 2013 seeking judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 11 November 2013 affirming a decision of the Minister’s Delegate to not grant the applicants each a Protection (Class XA) visa (“the visa”) .
The first applicant appears in person. He has not filed written submissions pursuant to the orders and directions of the Registrar made 19 February 2014.
The application first came before me on 2 July 2014 and was that day dismissed by reason of the absence of the applicant and pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), together with an order for costs.
My reasons for judgment on that day also encompass a consideration of the merits of the application[1] where at [42] I conclude:
For the reasons set out above, I find no merit in the application for a judicial review. The applicants did not attend the hearing. Consequently, the application will be dismissed pursuant to rule 13.03(c) of the Federal Circuit Court Rules 2001.
[1] MZZWU v Minister for Immigration and Border Protection [2014] FCCA 1425
On 21 April 2015 the applicants filed a further application seeking to have my orders of 2 July 2014 set aside. That application was accompanied by an affidavit of the first applicant setting out the reasons for his non-attendance at the hearing on 2 July 2014 summarised as follows:
(i) that the applicants did not have legal representation and were not therefore aware of the “legal consequences” of the hearing; and
(ii) that the first applicant could not attend the hearing because of his wife’s illness.
A hearing of that application was listed for 5 June 2015. The applicants again did not appear and the application was again dismissed under rule 13.03C(1)(d) of the Rules.
On 11 June 2015 the applicants filed yet another application seeking to have my orders of 5 June 2015 set aside. A further affidavit was filed by the first applicant deposing that he did not receive notice of the relisting of the matter at 9.15 am on that day, it having previously been listed at 2.15 pm.
Issues:
The Court file shows that the applicant was advised of the relisting date by letter of 11 May 2015 sent to his correct address for service.
The applicant now appears in person and is unrepresented. He provided no written submissions. He was invited to make oral submissions and said that his non-attendance was due to his “wife being hospitalised”. It appears to me that this submission may be confusing the applicant’s position with his non-attendance on 21 April 2015.
The first respondent Minister argues that, regardless of the adequacy of the applicant’s explanation for non-appearance at the hearing on 5 June 2015, the application is bound to fail. That is, it is argued that there is a lack of utility in setting aside the previous order.
The Court, of course, has a discretion under rule 16.05(2)(a) of the Rules and I accept the submissions of Counsel for the first respondent that the following broad considerations are relevant:
(i) the adequacy of the applicants’ explanation for their absence at the hearing;
(ii) the length of time between the Court’s orders dismissing the proceeding and the making of the first application to have those orders set aside; and
(iii) the merits of the substantive application.
The applicants’ explanation for the failure to attend the hearing on 2 July 2014 is set out above. Nevertheless, it is well-established that the applicant has the onus of making proper inquiries and taking reasonable action to review a Tribunal’s decision within the applicable time limits. As such, I am not satisfied that a lack of legal representation of itself is sufficient to explain the applicants’ non-appearance in the absence of further particulars or argument.[2] No medical evidence was provided to the Court in support of the applicant’s wife’s illness and how that would prevent the first applicant attending at the Court for what would ordinarily be a hearing of short duration. It is clear that no adjournment was sought or prior notice given to the Court or the first respondent.[3]
[2] Manna v Minister for Immigration and Citizenship [2013] FCA 400 [17]
[3] NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]
Conclusion.
In any event, and as set out above, my reasons of 2 July 2014 go further than simply dismissing the application pursuant to rule 13.03C of the Rules and address the merits of the application. No challenge or argument is now brought by the first applicant in respect of my determination. In such circumstances, I am persuaded in the terms of the first respondent’s argument that there would be no utility in granting the application to set aside the orders dismissing the application. [4]
[4] Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448 at [10].
The application will be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 24 September 2015
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