SZDMO v Minister for Immigration & Multicultural Affairs

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 a grant of leave to appeal from the Federal Magistrates Court, as is necessary in a case such as this, the applicant must establish that the decision of the Federal Magistrates Court was attended with sufficient doubt to warrant the grant of leave. He must also show that substantial injustice would result from a refusal of leave to appeal (Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ). 5 It follows from this that because the applicant did not have an opportunity, through no fault of his own, to present his argument on 11 July 2006 I should assess the question of whether my original orders ought be set aside and, if so, what order I should make in their place on the basis that the original application for leave to appeal which was before me on that earlier occasion is now, as a matter of substance, to be determined on a freestanding basis. 6 Other than relying upon what is in his two affidavits, the substance of which I have set out, the applicant is not able to identify any error made by either the Federal Magistrate in the decision the subject of the application for leave to appeal or of the Tribunal whose decision was the subject of the review application before the Federal Magistrates Court. In my judgment of 11 July 2006 I set out the procedural history of the applicant's challenges to the original decision of the Tribunal given on 22 December 1999 affirming a decision of the first respondent to refuse to issue him a protection visa. 7 Having considered the matter afresh I am of the opinion that there is no basis upon which I should depart from the reasons for decision or the decision at which I arrived on 11 July 2006 other than perhaps to consider whether the order for costs should be revisited. The order for costs was made on the basis that there had been no appearance by the applicant for the hearing of his application for leave. I will hear the parties on what order for costs I ought now to make. 8 My initial inclination is that I should not disturb the order for costs but make no order for today's costs on the basis that there having been an explanation, the applicant was entitled to one day in court. Through no fault of his own he was unable to attend and while it is unfortunate that the time of the first respondent and the Court was unnecessarily used on 11 July 2006, justice would be done by leaving the order undisturbed but making no further order today. But I will hear the parties on that. 9 I order that the motion, notice of which was filed on 17 July 2006, be dismissed. I make no order as to costs on that motion. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.