NAUH v Minister for Immigration (No.2) - [2004] FMCA 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAUH v MINISTER FOR IMMIGRATION (No.2)

[2004] FMCA 830

MIGRATION – Whether order dismissing application which was made in the absence of the applicant should be set aside.

Taylor v Taylor (1979) 143 CLR 1
Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448

Applicant:

NAUH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1815 of 2003

Delivered on:

10 November 2004.

Delivered at:

Sydney

Hearing date:

10 November 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application made by the applicant under Rule 16.05 of the Federal Magistrates Court Rules is dismissed
That the applicant pay the respondent's costs set in the amount of $1,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1815 of 2003

NAUH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application commenced by way of Notice of Motion brought pursuant to Rule 16.05 of the Federal Magistrates Court Rules seeking that an order dismissing the applicant's application for review of a decision of the Refugee Review Tribunal be set aside. The applicant clarified in oral submissions that the notice of motion (which was made on a Federal Court form) and which he had sent to the court by facsimile, was intended to continue the proceedings in the Federal Magistrates Court. However it appears that while the registry inserted the file number for the proceedings in this Court the document was stamped filed in the Federal Court. Insofar as it is necessary, and to reflect the intention of the applicant to seek an order that I set aside my orders, I granted him leave to make such application orally, dispensing with requirements to the contrary pursuant to Rule 1.06(1) of the Federal Magistrates Court Rules.
The background to this application is that the Refugee Review Tribunal (the Tribunal) handed down a decision on 10 July 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant filed an application seeking review of that decision in the Federal Court on 30 July 2003. The matter was transferred to this court. It is apparent from the court file that the applicant attended a directions hearing on 15 August 2003. The documents completed at that time indicated that he required a Bengali or Urdu interpreter and that orders were made by consent for the filing of documents.
The matter was to be listed on a date to be advised. The court wrote to the applicant on 5 September 2003 advising him that the matter was set down for final hearing at 10:15am on Wednesday, 18 August 2004. While the consent orders provided for the filing of any amended application or written submissions, no amended application or written submissions were filed by the applicant. The applicant was not present when the matter was called on 18 August 2004. An effort was made to contact him on the telephone and that was successful. He advised that he would be at the court in half an hour.
The court adjourned for half an hour to allow the applicant time to appear. He did not do so and I dismissed the matter pursuant to Rule 13.03A(c) in the absence of the applicant. I required the solicitor for the respondent to notify the applicant of the orders made and of the effect of Rule 16.05 of the Federal Magistrates Court rules. The respondent did so by letter sent to the applicant on the day of the hearing, 18 August 2004. Despite the applicant's suggestion from the bar table that he thereafter took action within 28 days in the Federal Magistrates Court in relation to my decision, there is nothing on the court file to suggest that that was the case. The only subsequent document filed by the applicant on the court file is the notice of motion which was not filed until 29 October 2004. The solicitor with carriage of the matter for the respondent attested that he had been instructed and believed that the applicant was detained by officers of the respondent on 26 October 2004.
In submissions from the bar table today and in a written submission tendered at the conclusion of oral submissions, the applicant suggested that he had been sick on the day of the hearing and had come to court but had arrived after the time when the application had been dismissed. His notice of motion is not accompanied by any affidavit and there was no evidence before the court in relation to the claimed illness. In particular, despite being asked whether he had any medical evidence, the applicant indicated that he had no medical evidence in relation to his claim that he was ill on 18 August 2004. Moreover, such claim is not consistent with what appeared to be the case on 18 August 2004. There was no suggestion at that time that the applicant was ill.
In particular, it is clear that the applicant did not arrive at court within the half hour adjournment allowed. Nor is it apparent on the material before me that he filed any application or other document in this Court within 28 days after 18 August 2004 as claimed although he did file the notice of motion on 29 October 2004.
As was conceded by the solicitor for the respondent, the court has power under Rule 16.05(2) to set aside an order made dismissing an application, relevantly where the order is made in the absence of the applicant or if it is an interlocutory order. The power is expressed in general terms. It is a discretionary power. It is clear in this case that the respondent does not consent to the orders being set aside. It is therefore necessary for the court to determine whether it is appropriate to exercise its discretion to set aside the orders that were made on 18 August 2004 and entered on 6 October 2004. Such power must be exercised judicially. There is authority to the effect that the discretion must be exercised with caution, although it is not so narrow or exceptional to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1). While the court has an inherent power to set aside an order where there has been a miscarriage of justice, such power should be exercised with great caution having regard to the importance of the public interest in the finality of litigation.
Factors relevant to be taken into account are the reason for the non-appearance and whether the applicant is able to show that by accident, without fault on his or her part, the order was made in circumstances that warrant the exercise of the discretion. In this instance, the applicant did not appear at the time set down for hearing of his application. He had filed an original application in very general terms. He did not file any amended application and he did not file written submissions. Despite being contacted by the court on 18 August 2004 he did not arrive at the court in the time sought by him. Nor, despite being notified on that day by letter from the respondent’s solicitor of the effect of the orders made and the existence of Rule 16.05, did he take prompt action to seek that the order be set aside. He claimed that after his application was dismissed a solicitor commenced proceedings for him. He had no evidence of any such proceedings and the respondent was not aware of any such proceedings. Nor is there anything to support this claim on the court file.
He has not provided any evidence for the reason for his non-appearance on the day of the hearing. In particular, despite claiming to be unwell in his submissions, he provided no evidence to support that claim. Nor is there any suggestion that he contacted the court in advance of the hearing or thereafter to notify it of his claimed health difficulties. The claim that he now makes from the bar table in relation to his reason for not being in court is not consistent with the reason he provided when he was contacted on that day. In short, the applicant has not provided an explanation for his non-attendance such as to satisfy me that it is in the interests of justice that the orders should be set aside.
It is also relevant to consider whether setting aside any order would be futile. I have had regard to the decision of Emmett J in Lie v MIMA [2001] FCA 1448 where one of the factors that his Honour took into account in refusing to set aside a dismissal for non-appearance was that nothing indicated that the applicant had any prospect of establishing any ground for review of the Tribunal decision. Similarly, in this case the applicant has not filed any written submissions or any amended application and, without determining the substance of his application, there are cogent reasons in the respondent's written submissions why the applicant generally expressed application could not succeed. There is nothing to indicate that he has any prospect of establishing any ground of review.
The applicant has not put anything before the court to establish that he has any prospect of establishing any ground for review of the Tribunal decision. His written submission takes issue with the circumstances in which his application to this court was dismissed and beyond that complains that ‘It is unfortunate for me that I came to this country, having been victimised politically from my country’ and that the political situation of his country is extremely volatile nowadays and it is not safe for him to go back now.
In all the circumstances of the case, I am not satisfied that this is a case in which it is in the interests of justice that I should exercise my discretion under Rule 16.05 to set aside the orders that were made by me on 18 August 2004. Hence the application that is now brought by the applicant should be dismissed.
The respondent seeks that the applicant pay costs on an indemnity basis. In all the circumstances of this case, I am satisfied that the manner in which the applicant has proceeded amounts to an attempt, at the least, to take great advantage of the procedures of the court. He has not at any stage complied with orders of the court. He did not file documents as ordered at the directions hearing or appear on the last occasion. Somewhat belatedly he now seeks that the order dismissing his application should be set aside without providing any grounds on which the court should do so. In those circumstances, the proceedings today are an abuse in the sense that warrants that costs should be ordered on an indemnity basis.

RECORDED : NOT TRANSCRIBED

The costs sought by the respondent are in the sum of $1,200.

I consider that as indicated above, it is appropriate that the applicant should meet such costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 December 2004