Pantel v Minister for Immigration

[2013] FCCA 2394

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANTEL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2394

Catchwords:
MIGRATION – Appeal – application to review decision of the Migration Review Tribunal dismissed in the absence of the applicant – further application filed to set that judgment in default of appearance aside – application dismissed.

Legislation:  

Rules of Court 2012

Applicant: RANAJAY SINGH PANTEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 351 of 2012

Judgment of: Judge Lindsay

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Adelaide

Delivered on: 11 November 2013

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not Applicable

Counsel for the First Respondent: No Appearance

Solicitors for the First Respondent: Not applicable

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent: Not applicable

ORDERS

The Application filed this day, to set aside the judgment or judgments made in default of appearance, of Mr Pantel on 22 July and 14 October 2013 is dismissed. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 351 of 2012

RANAJAY SINGH PANTEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This was an application filed by Mr Pantel on 31 December 2012, in which he sought an order for review of a decision of the Migration Review Tribunal of 7 December 2012.  It was delivered on 6 December 2013 but dispatched on 7 December 2013.  I will not go into the merits of the Tribunal’s decision.  But it was a decision to affirm the decision of the delegate of the Minister not to grant the applicant the skilled provisional class visa that he was seeking.

2. As I say, it was the subject of a review, and the date appointed for the review was 22 July of this year before me.  The applicant was not at that hearing and his non-appearance having been ascertained, the application was dismissed pursuant to Rule 13.03C(1)(c) of the Rules of Court.

3. That elicited on 18 December, a little short of two months later, an application to set aside that judgment in default of appearance.  An Application-in-a-Case was filed and in that Application-in-a-Case, the only explanation provided for his non-appearance by Mr Pantel were that he had some family problems and was going through huge depression, “I couldn't make to hearing”.  There is no suggestion there, of course, that he was not aware of the date of the hearing.  Mr Pantel did not attend that hearing which was fixed for 14 October 2013.  It is now just under a month after that hearing filed. 

4. The application simply seeks to set aside the orders made at that hearing.  It was filed today.  It was brought to my attention shortly after it was filed today.  I am assuming it is intended to set aside the Order made in July 2013 or, if necessary, to set aside the October order when he did not attend that hearing.

5. Once again, the only information provided in the affidavit and the information provided on Mr Pantel’s oath is that he could not attend the hearing because of family problems and because he was going through depression.  In circumstances where there has been a non-attendance at the hearing and then a non-attendance at the application to set aside the orders at that hearing, one would have thought Mr Pantel would have gone to some lengths to provide an explanation as to his non-attendances on both occasions; in other words, to provide some detail.  So, for example, the depression suggested might have been supported by something from a medical practitioner. 

6. The reference to family problems was not the subject of any explication in neither affidavit, nor today.  I managed to ascertain, by asking Mr Pantel, that the claim is apparently that two family members passed away on the date appointed in October and, as far as the hearing in July is concerned, it is something relating to a family land dispute.

7. There is a jurisdiction to set aside orders that are made in the absence of a party.  If a party is absent from a hearing and there is a reasonable explanation for it then, in truth, they have not been given a proper opportunity to attend and the Court always has a jurisdiction to set aside such orders, in those circumstances, to give a party an opportunity of putting their case.

8. But there has got to be some plausible evidence presented before the Court indicating that there is a reasonable excuse for the failure to attend, either a matter entirely outside the scope of responsibility of the applicant or a matter within his scope of responsibility but for which there exist circumstances which still make it reasonable to excuse his non-attendance.

9. Mr Pantel has not satisfied either criteria in respect of either application.  It is wholly unsatisfactory to expect the Court to exercise the jurisdiction it has to set aside orders made in the absence of a party where there has been such a flimsy and, I should say, disrespectful attempt to even provide the kind of information that would put the Court in a position to make such an assessment.

10. The Court can come to a view that the explanation for the non‑attendance is not reasonable either because the reasons advanced are implausible or because there has been no reasonable attempt to even advance any reasons.  Each of the affidavits filed by Mr Pantel fall into that latter category.  There is simply no attempt to flesh out either of the contentions he makes, either as to family problems or depression. 

11. If, in truth, the hearing on 14 October was avoided by him because two members of his family had passed away in a car accident on that day, one would have expected the Court to have been told that and it is not information I am prepared to simply accept from the bar table in circumstances which it is put to me today.

12. More significantly though, is the circumstances that at the hearing in July at which the substantive application was dismissed, there is simply no plausible or even semi-plausible information provided by Mr Pantel from the bar table today as to his non-attendance at that hearing. 

13. The Court has a power under the Rules of Court, Rule 13.10 to summarily dispose of a matter if:

    a)If the Court is satisfied that there is no reasonable prospect   of successfully prosecuting it;

    b)     Or if it is frivolous or vexatious.

14. In my view, the agitation of an application to set aside in these circumstances, that is, where it is the second such application and where it is filed with so little affidavit material filed in support of it, amount to circumstances that entitle me to categorise the claim for relief as frivolous.

15. For that reason, the application will be summarily dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Associate: 

Date:  19 February 2014