SZDMO v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

SZDMO v Minister for Immigration & Multicultural Affairs
[2006] FCA 1304

SZDMO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 1006 OF 2006

RARES J
19 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1006 OF 2006

BETWEEN:

SZDMO
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	19 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion, notice of which was filed on 17 July 2006, be dismissed.

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	NSD 1006 OF 2006

BETWEEN:

SZDMO
Appellant/ Applicant on the motion

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	19 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an application to set aside orders which I made dismissing the application for leave to appeal, after the applicant had failed to appear, on 11 July 2006 in SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989. The applicant has drawn my attention to and relied on the affidavit which he made on 24 May 2006 in which he said that he had not had the opportunity to defend his case before, as I infer, the Tribunal or the Federal Magistrates Court and he believed that the Federal Magistrate ‘breached fairness’ and denied him natural justice.

2. On 17 July 2006 the applicant filed a motion seeking to set aside the orders that I had made six days earlier and asking that he be allowed to argue his case in full.  In support of that he swore an affidavit.  He was unable to attend court on the hearing fixed for 11 July 2006 because of serious back pain, he did not have a telephone and was not able to call court to inform it about his inability to attend the hearing.  That explanation has not been challenged and I accept it. 

3. Accordingly, the applicant has established that I have jurisdiction to set aside an ex parte order made in his absence where there was no fault on his part (see Taylor v Taylor (1979) 143 CLR 1 at 8 and 16; SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 594). On 31 July 2006 the Minister filed a minute of the orders which I had made and those orders were entered on 15 August 2006. However, in my opinion the fact that the applicant filed the motion on 17 July 2006 enables the Court to protect its processes by having the power to set aside the added order in the exceptional circumstances that the order was entered notwithstanding that the motion had not then been heard.

4. In order for an applicant to be entitled to…