Nadeem v Minister for Immigration, Citizenship and Multicultural Affairs

1. The interlocutory application dated 9 January 2024 be dismissed.
2. The applicant pay the first respondent's costs of and incidental to that application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript)

HORAN J: 1 On 29 November 2023, the Court dismissed an application filed by the applicant, Mr Hasnain Nadeem, seeking leave to appeal from orders of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal and subsequently refusing to reinstate that application: see Nadeem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1498 (Nadeem No 1). The orders of this Court were made pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) due to the applicant's absence when the matter was called on for hearing, after his prior written request for an adjournment of the hearing had been refused. 2 On 9 January 2024, Mr Nadeem filed an interlocutory application seeking the following orders: 1. Please reopen my case and give me chance to present my reasons for the appeal 2. I would request honorable Judge to give me one more chance to present my side of story 3. Please accept my Interlocutory application 3 The interlocutory application was supported by an affidavit of Mr Nadeem dated 2 December 2023 (the December affidavit). 4 Neither the interlocutory application nor the supporting affidavit provide any explanation as to the reason for Mr Nadeem's failure to appear at the hearing on 29 November 2023. The affidavit essentially repeats (mutatis mutandis) what was stated by Mr Nadeem in his previous affidavit dated 18 June 2021 in support of the application for leave to appeal from the orders of the Federal Circuit Court. In the final paragraph of the December affidavit, Mr Nadeem states: I like to request Honourable Judge to reopen my case and give ne chance to appear in front of court to present my case and I would also request Federal Court of Australia to consider my circumstance and mistake made by the Honourable Federal Circuit Court and Administrative Appeals Tribunal and allow my appeal to be heard and make decision in my favour. 5 On 31 January 2024, I made orders setting down the interlocutory application for hearing at 10.15 am on 29 February 2024, and providing for the parties to file written outlines of submissions and any affidavit evidence upon which they seek to rely at the hearing. 6 Mr Nadeem has not filed any written outline of submissions, nor any further affidavit evidence. 7 The first respondent filed a brief written outline of submissions, in which it is submitted that the interlocutory application should be dismissed on the basis that Mr Nadeem has not provided any explanation for his failure to appear at the hearing on 29 November 2023, and that his case on the application for leave to appeal is not sufficiently strong to warrant the reinstatement of his application. The first respondent relies on an affidavit affirmed by Anthony Robert Gardner on 26 February 2024, which exhibits an updated copy of Mr Nadeem's movement history record in order to establish that the applicant was present in Australia on the date of the hearing on 29 November 2023. 8 Mr Nadeem again did not attend the hearing of his interlocutory application, and has not provided the Court with any explanation for his absence. 9 The interlocutory application before the Court is, in effect, an application pursuant to rr 35.33(2)(a) and 39.05(a) of the Rules. 10 Rule 35.33(2) provides that: If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, theReg party who was absent may apply to the Court for an order: (a) setting aside or varying the order; and (b) for the further conduct of the proceeding. 11 Rule 39.05 relevantly provides that: The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or … 12 I am satisfied that the Court has power to hear and determine Mr Nadeem's current interlocutory application in his absence pursuant to rr 17.04 and 35.32, or the inherent power of the Court: see Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [4]-[5] (White J); Sandhu v Minister for Immigration and Border Protection (No 2) [2015] FCA 1429 at [9]-[10] (Kenny J). 13 I am also satisfied that it is proper to proceed to hear and determine the interlocutory application, having regard to the circumstances and the history of the matter. 14 The discretion to set aside an order under r 39.05(a) should ordinarily be exercised only in exceptional circumstances or with good reason: Ogawa v Buckingham (No 2) [2023] FCA 1387 at [10] (Rangiah J); Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] (Gordon J); Lal at [9]. The relevant considerations include whether the applicant has provided an acceptable explanation for their absence, and the strength of his or her case: Sandhu at [13]; Lal at [9]; Ogawa at [10]. 15 For the reasons set out in Nadeem No 1 at [15]-[34], there was no satisfactory or adequate explanation for Mr Nadeem's failure to attend the hearing on 29 November 2023. Mr Nadeem's affidavit in support of the present interlocutory application provides no further explanation for his failure to attend that hearing. As noted above, Mr Nadeem also failed to file any written submissions or evidence to support his application. 16 Mr Nadeem's movement history record indicates that he last arrived in Australia on 13 November 2023, having previously departed on 16 October 2023, and has not again left Australia since his return. Accordingly, consistently with my findings in Nadeem No 1, I am not satisfied on the evidence before the Court that Mr Nadeem was unable to attend the hearing on 29 November 2023 due to his being outside Australia at that time. 17 In relation to the strength of the applicant's case, for the reasons set out in Nadeem No 1 at [35]-[41], the application for leave to appeal had (and still has) low prospects of success. No other matter has been brought to my attention that would lead me to take a different view of Mr Nadeem's prospects of success on his application for leave to appeal. 18 Further, as stated in Nadeem No 1 at [39], in so far as Mr Nadeem takes issue with the interlocutory orders made by the Federal Circuit Court, the proper course available to him is to make an application to the Federal Circuit and Family Court of Australia to set aside those orders pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). 19 For these reasons, I am not satisfied that it is appropriate to exercise the discretion under rr 35.33(2) or 39.05(a) to set aside or vary the orders made by the Court on 29 November 2023. 20 Accordingly, the interlocutory application filed on 9 January 2024 is dismissed. The applicant should be ordered to pay the costs of the first respondent. 21 The orders of the Court are as follows: (1) The interlocutory application dated 9 January 2024 be dismissed. (2) The applicant pay the first respondent's costs of and incidental to that application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Horan.