N1208A v Minister for Immigration and Multicultural Affairs

[2002] FCA 580

FEDERAL COURT OF AUSTRALIA

N1208A v Minister for Immigration and Multicultural Affairs [2002] FCA 580

MIGRATION – Application to set aside orders dismissing application for want of appearance – whether real prospect of success

Migration Act 1958 (Cth)

N1208A OF 2000 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N1208 OF 2000

TAMBERLIN J
SYDNEY
2 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1208 OF 2000

BETWEEN:	N1208A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	2 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1208 OF 2000

BETWEEN:	N1208A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	2 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter an application has been made by the applicant to set aside a judgment made on 26 October 2001 when the applicant did not appear for the hearing and accordingly orders were made for default of appearance.  The applicant has provided an explanation in relation to what happened.  When the matter was called on at 10.15 am on the morning of 26 October 2001 there was no appearance for the applicant but a message had been received by the Court purporting to come from the applicant stating that his car had broken down.  The matter was subsequently adjourned until 2.15 pm that same day and again the applicant did not appear before the Court.  However, the applicant came to the Court building but did not come up to the Court room itself.  This was unknown to any persons in the Court room and accordingly shortly after the time fixed for the hearing of the matter in the afternoon I made an order dismissing the application with costs for default of appearance.

2. I pointed out the provisions of O 35 r 7 of the Federal Court Rules (“FCR”) which enable a party against whom a decision has been made in absentia to make an application to the Court to have the judgment or order set aside.  On 16 November 2001 a Notice of Motion was filed by the applicant seeking to set aside the orders made on 26 October 2001 and orders from the Court concerning his appeal application before the Full Court.  He relied in that Notice of Motion on an affidavit which he had filed.

3. The matter was listed before me for directions on 28 March 2002 when orders were made that the applicant was to file any additional evidence by 10 April 2002 and the matter would be fixed for hearing.  The matter was fixed for hearing at 10.15 am on 26 April 2002 but for administrative reasons the matter was re-listed for hearing today, Thursday, 2 May 2002 and this change was notified to the applicant.  Directions made on 28 March 2002 specified that submissions by the applicant should be filed four days before the hearing which was then fixed for 26 April 2002.

4. There has been tendered in evidence a file note by the respondent’s solicitor recording in more detail the discussions in Court on 28 March 2002 in relation to the further hearing.  This records that it was stated in Court that a date would be fixed for hearing of the Notice of Motion and that the merits of the matter would also be heard on that day.  The note records that there was an indication to the parties that the actual application for an order of review would be heard on the hearing date which had been fixed on the basis that the application to set aside is successful.  This accords with my recollection of what transpired on that day.

5. When the application came on before me this morning the applicant indicated that he wished only to present material to the Court in relation to the reasons why there was no appearance on the date which had been originally fixed for the hearing.  That is to say on 26 October 2001.  I indicated to the applicant that it would be necessary to inform the Court what grounds, if any, he had in relation to the reasons to review the decision of the Refugee Review Tribunal (“the RRT”), but he declined to make any submissions in relation to this matter in any detail, contending that he had understood that the matter was only before the Court today in relation to the motion to set aside the judgment.  Of course, part of the consideration of a motion to set aside the judgment involves the exercise of discretion and the taking into account of whether there are any real prospects of success on the application having regard to the material before the Court.

6. I am satisfied that as from 28 March 2002 the applicant was aware that the substance of the application was to be considered if the application to set aside the orders of 26 October 2001 was granted.  In the course of the hearing reference was made to the application for review which was filed on 13 November 2000 in which some grounds are set out in respect of the complaints against the RRT decision.  These involve a submission as to, in effect, bias and a submission that proper procedures were not followed because the applicant did not have an opportunity to present his case in person before the RRT.

7. I am satisfied having regard to the detailed history of the matter, which was outlined to me by Counsel for the respondent, that in the present case there has been no breach of any of the provisions of the Migration Act1958 (Cth) (“the Act”). Nor has there been any reviewable error of law or principle committed even on an arguable basis such as to warrant the setting aside of the judgment which has previously been given. In particular, it seems to me that the RRT member extended considerable latitude to the applicant to provide necessary explanations and make appropriate submissions in the period prior to the handing down of the RRT decision, but these opportunities were not availed of and no satisfactory explanation was given in relation to them.

8. I am not satisfied that there has been any failure to give proper consideration or the full opportunity of a proper hearing to the applicant in the circumstances of the case. I am satisfied that there has been no breach of any principle of natural justice in the present case. I am also satisfied that there has been no breach of the procedures which are required to be followed in relation to a hearing or under the provisions of the Act.

9. Accordingly, in the exercise of my discretion in this matter and having regard particularly to the detailed history of events which have taken place, both in relation to the original hearing and in relation to the present hearing, I consider that the application for leave to re-open the judgment pursuant to O 35 r 7 should be dismissed with costs.  That being so, the application for leave to re-open having been refused, it is unnecessary to consider in any more detail, for the reasons which I have given above, the substance of the application which has been raised.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             8 May 2002

Applicant was self-represented.
Counsel for the Respondent:	Ms Sharp Mr Leeming
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	2 May 2002
Date of Judgment:	2 May 2002