Pannu v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 21 November 2013, I dismissed the applicant's application for permission to appeal against an order of the Federal Circuit Court made on 12 July 2013. The order of the Federal Circuit Court, against which the applicant wished to appeal, was the refusal by that Court to re-open an application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Migration Review Tribunal. The Federal Circuit Court had, on 20 June 2013, dismissed the judicial review application because the applicant did not attend at the hearing of that application that day. 2 I dismissed the application for leave to appeal to this Court, against the order of 12 July 2013, because the applicant did not appear at the hearing on 21 November 2013, had not provided a satisfactory explanation for his failure to do so, and because I considered that the application did not, in any event, have reasonable prospects of success. 3 I am dealing today with an interlocutory application filed by the applicant on 11 December 2013 by which he seeks a re-opening of the application for leave to appeal. There is no issue about the Court's power, in an appropriate case, to re-open such an application. That power exists by virtue of s 25(2B)(bc) of the Federal Court Act 1976 (Cth) or by virtue of rule 39.04 of the Federal Court Rules 2011. 4 Section 25(2B)(bc) enables the Court to set aside or vary certain orders, including an order under s 25(2B)(bb), dismissing an appeal for the failure of an applicant to attend a hearing relating to an appeal. It is arguable that my dismissal of the application for permission to appeal on 21 November does not meet that description: first, because it was an application for permission to appeal only; and, secondly, because the grounds upon which I dismissed the application extended beyond the applicant's failure to attend. But even if there be no power under s 25(2B)(bc), there is power under rule 39.04. 5 I proceed on the basis that the power in the Court, whether it arises under s 25(2B)(bc) or rule 39.04, is a power to be exercised with caution. That is the principle enunciated by the Full Court in Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41 at [6]; (2007) 239 ALR 724 at 726. 6 I accept that Venus Adult Shops followed a hearing in which both parties had participated. One would naturally expect that the circumstances in which a decision following such a hearing may be re-opened may be more limited than in the case of an appeal which has been dismissed because the appellant has not attended, or when that circumstance constitutes a major reason for the dismissal of appeal. Nevertheless, it is appropriate to proceed on the basis that this Court does not readily allow the re-opening of its decisions and requires a proper justification for that to occur. 7 In the grounds of his application, the applicant, who is unrepresented, says only that the Court had made the decision dismissing his application on 21 November and that he wants the application re-opened. That ground does not disclose a basis on which a re-opening of the application could be allowed. 8 In the supporting affidavit, the applicant says only: On the date of 21 November Court made decision and they dismissed the case because I had not attended the hearing. So I requested to renew my case again and give me a new date. Thanks. 9 As can be seen, these are not proper grounds for an application of the present kind either. However, in the circumstances, and especially taking account of the fact that the applicant is unrepresented, I invited him to make submissions to support the application from the bar table and in the course of those submissions to identify the basis for the application. I also explained to the applicant the matters about which the Court would need to be satisfied to allow a re-opening. 10 In the course of his submissions, the applicant made a request, which I am willing to construe as an application for an adjournment, in order that he can obtain legal advice and legal assistance in relation to the application. He said that in this month, that is, of December 2013, he had approached some lawyers for legal assistance and was seeking to arrange, or procure, the financial resources to enable him to do so. However, he has not yet retained any lawyer, it is not known whether he will be able to obtain a lawyer, and I note that no lawyer has attended here this morning to confirm that he or she will be prepared to provide legal assistance, subject to proper arrangements for the retainer being made. 11 I also regard an application for an adjournment on the basis that the applicant now wishes to obtain legal advice as being somewhat belated. The applicant, in my view, has had ample opportunity to obtain legal assistance in relation to the proceedings in the Federal Circuit Court and in relation to the proceedings in this Court, but has not done so. 12 I also add that I consider that the Court should view with some circumspection the reason advanced for an adjournment, bearing in mind, I think it is fair to say, the inconsistencies in the reasons which the applicant has advanced in the past when seeking adjournments or deferrals. I refer, in this respect, without repeating, to my reasons in Pannu v Minister for Immigration and Citizenship [2013] FCA 1282, and, in particular, to [29] and [30]. 13 However, I do not resolve the application for the adjournment against the applicant on the basis that I do not accept the reason he has put forward. I just treat that reason with some circumspection but it is only one of the matters which is pertinent. For the reasons earlier mentioned, I am not prepared to allow an adjournment of the present application. The applicant has had ample opportunity to obtain legal representation in relation to these proceedings but has not done so. Instead he has sought adjournments on a basis which he acknowledges to be false. 14 I turn to the substantive application. On an application of the present kind, an applicant must establish two principal matters. First, he must provide an adequate explanation for his failure to attend the two hearings in this Court, being the directions hearing on 15 November and the substantive hearing on 21 November; and, secondly, he must show that there is some utility or purpose in setting aside the order of dismissal having regard to the merit of the application for leave to appeal. 15 In my opinion, the applicant does not establish either of these matters. I set out in [22] of my published reasons the applicant's explanation for non-attendance provided to the Court on 13 November when he sought an adjournment of the hearing. That related to the alleged terminal illness of his father and the applicant's proposed absence from Australia from 16 November to 26 February 2014. As I observed in those reasons, the alleged illness of the father is inconsistent with the previous statements made by the applicant to the effect that his father has been dead for a considerable period. 16 In addition, as I record in those reasons, the records of the respondent indicate that the applicant had not left Australia before 21 November 2013. The applicant has confirmed today that he has not left Australia this year. With the exception of the month of January this year, he has resided throughout in Adelaide. In those circumstances, I consider that the applicant has not provided a proper explanation for his failure to attend on 15 November and, again, on 21 November. 17 I also consider that the applicant has not demonstrated that there is merit in his underlying application for permission to appeal. In this respect, I refer to what I said in [31] and [32] of the reasons published on 29 November. 18 It is an unfortunate circumstance that the applicant sought an adjournment of proceedings in the Federal Circuit Court on the basis of his proposed absence from Australia, but was not, as he now acknowledges, absent from Australia at all. He has not therefore provided a proper explanation for his non-attendance in that Court on 20 June 2013. The applicant has mentioned today that he has been under some mental pressure relating to what he described as "personal stuff". But a generalised statement of that kind is not sufficient to establish underlying merit, especially in the context of the history relating to the applicant's various applications to the Tribunal, to the Federal Circuit Court and to this Court. 19 For these reasons, I am not satisfied that the applicant has established that this is a case in which it is appropriate to order the re-opening of his application for leave to appeal to this Court. Accordingly, I dismiss the interlocutory application of 11 December 2013. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.