BRL15 v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 The appellant has sought by interlocutory application dated 3 November 2016 to set aside judgment given on 2 November 2016 dismissing his appeal. The interlocutory application seeks also for his appeal to be reinstated and to be given a hearing date. The Minister opposes the application and had opposed the appeal which was to have been heard on 2 November 2016. 2 On 2 November 2016 there was listed before this Court the hearing of the appellant's appeal from a decision of the Federal Circuit Court given on 23 June 2016. On that day Judge Harland dismissed, and gave reasons, an application the appellant had made on 22 July 2015 for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed a decision by the delegate to refuse the appellant's application for a protection visa. The appeal from the decision of the Federal Circuit Court was listed for hearing in this Court on 2 November 2016. The matter was called in the usual way on that day but the appellant did not appear. The Minister then sought, and obtained, an order dismissing the appeal pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). In dismissing the appeal, however, I added that I had read the materials which have been filed in the proceeding and had also formed the view that the appeal was unlikely to succeed in any event. I have reviewed all of those materials for the purposes of the hearing today and remain of that view. 3 The Court has power under r 36.75(2) to set aside or vary an order made in the absence of a party when an appeal is called on for hearing. In SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999 Driver FM correctly observed at [6] that reinstatement of an application following dismissal for non appearance "should not occur as a matter of course". Exceptional reasons need to be advanced with the Court needing to be satisfied "that there was a sufficient explanation for the non attendance" and that "there would be some useful purpose to be served in reinstating" the proceeding. In AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305 Markovic J said at [8]-[9]: 8 In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. In that matter, the applicant's application before the Federal Magistrates Court, as it was then known, was dismissed in his absence. The applicant applied for reinstatement of that application and the Federal Magistrate refused the application. The applicant sought leave to appeal from that decision. In that context Ryan J at [7] recognised that where reinstatement is sought a discretion falls to be exercised by the Court which requires the consideration of three factors: (1) whether there is a reasonable excuse for the party's absence; (2) the existence and nature of any prejudice which might flow to the other party from a reinstatement and if so, the extent to which that prejudice can be counteracted or assuaged by a costs order, an adjournment or other relief; (3) whether the applicant for reinstatement has a reasonably arguable prospect of success on the substantive application. 9 I accept the Minister's submission that, while MZYEZ is concerned with rule 13.03C(1) of the then Federal Magistrates Court Rules 2001 (Cth), the same discretionary criteria is applicable to an application pursuant to rule 36.75(2) of the Rules. Similar views were expressed in comparable circumstances in MZZWU v Minister for Immigration and Border Protection [2016] FCA 166 at [14], [25]. 4 The appellant filed an affidavit in support of his application for reinstatement. His explanation for failing to attend on 2 November 2016 was that he did not have the money to pay for public transport to travel from where he was staying in Sunshine, Victoria, to the Court. His affidavit goes on to say that he had hoped, and made attempts, to borrow money on 1 November 2016 to pay for his public transport travel the following day. He tried again on the following day to obtain funds but by the time he managed "to get someone to lend [him] some money [he] was already getting late to get to Court in time to attend [his] case". He maintained that he arrived on the day of the hearing but after the matter had been heard and had been dismissed in his absence. His affidavit concludes by saying that he was told by someone at the Court registry that he should make an application to have his case reheard. 5 The appellant's reasons for his failure to attend the hearing on time, and of his attempts to raise the money to attend the hearing on time, were not challenged by the Minister. Self-serving evidence of the kind given by the appellant must be taken with caution where the evidence given is of a kind that cannot easily be tested or verified and where its acceptance may cause unacceptable inconvenience and expense to others and to the Court. The appellant in this case provided no corroborating evidence from any other person, or by any other means, to substantiate his claim. Nor did he give evidence to explain why he did not take other steps, or may have been unable to take other steps, such as, for example, to contact the respondent before the hearing or on the day of the hearing before the hearing was called. His reasons, even if accepted, may be thought to be an insufficient explanation given the importance to him of attending the hearing of his appeal. His affidavit provided no detail from which the Court might independently form a view that his circumstances were such that his attempts to obtain the funds needed to travel by public transport could not have been undertaken before the day immediately preceding the hearing. It lacked also the kind of detail that would add plausibility to his claim such as the identity (by name or description) of people he approached for money and the time of those approaches. A court must, of course, be mindful that the appellant is not legally qualified and may honestly believe that what he has said was sufficient to provide an adequate explanation to a court of law, but the court must still evaluate whether what is said is sufficient to be relied upon to justify reinstating a proceeding. The material relied upon in this case is not sufficient. 6 In this matter, however, it is sufficient to reject the application on the basis that the substantive appeal sought to be reinstated has insufficient merit to justify reinstatement. The appellant's affidavit seeking reinstatement does not raise any matter in support of the substantive appeal that was dismissed upon his failure to appear on 2 November 2016. The appellant had filed no affidavit and no submissions in support of the appeal which was to be heard on 2 November 2016. His grounds of appeal were general and unparticularised. No error was identified by the appellant to have been made by the Federal Circuit Court or by the Tribunal or by the Minister. There would have been no foundation to have allowed the appeal on the materials relied upon by the appellant on 2 November 2016 on the material before the Court on that day. 7 Accordingly, the interlocutory application will be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.