SZUFS v Minister for Immigration and Border Protection

The decision dismissing the reinstatement application 18 Citing, among other authorities, the Full Court decision of Akpata v Minister for Immigration [2005] FCAFC 250 at [13], his Honour listed the considerations relevant to the exercise of his discretion to set aside an order made in the absence of a party as follows (see SZUFS at [14]): (a) whether there was an adequate reason for the non-appearance at the hearing; (b) whether there was any delay in making the application to set aside the order; (c) whether the party, in whose favour orders have been made, would be prejudiced by a new hearing, which prejudice could not be adequately compensated by a costs order, or by ordering security for costs; and (d) whether there was an arguable case on the merits in the substantive application. 19 As to the first consideration, the Federal Circuit Court observed that the applicant's reason for his non-appearance was that he was "confused about the court date": see SZUFS at [15]. His Honour concluded that this "is not an adequate reason … given the applicant was notified of the change in listing of the application by letter and email, with the applicant confirming receipt of the email in his affidavit": see SZUFS at [16]. 20 With regard to the second consideration, his Honour observed that the delay in making the application was 27 days, which was "not an insignificant delay": see SZUFS at [17]. 21 Next, as to the third consideration, his Honour observed (see SZUFS at [19]) that: ... [w]hilst there may not be any prejudice to the Minister, this is insufficient to warrant the setting aside of the orders in light of the lack of the applicant's confirmation of his receipt of the email notification of the callover and the lack of adequate explanation for his non-appearance. 22 Finally, in relation to the fourth consideration, while his Honour noted that the applicant's non-attendance at the hearing provided a sufficient basis by itself for the dismissal of his reinstatement application, because of the history of the matter, he considered it appropriate to proceed to deal with the merits of the applicant's substantive application for judicial review: see SZUFS at [21]. The grounds of review are set out above (at [14]). 23 Following a consideration of the reasons given by the Tribunal, his Honour concluded the applicant's substantive application had no merits, for the following reasons: [36] The applicant has raised no arguable case in his application. His grounds are mere assertions which do not reveal any error in the Tribunal's decision or processes. [37] Contrary to what appears is being asserted, the Tribunal considered the applicant's claims under both the Refugees Convention (s 36(2)(a)) and the complementary protection criteria (s 36(2)(aa)), however it was not satisfied that the applicant fulfilled either. The Tribunal was not obliged to accept any or all of the applicant's claims: Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-70 per Wilcox J. The Tribunal's findings were open on the limited evidence that was before it. In circumstances where the applicant expressly declined to attend the Tribunal hearing to elaborate on his claims, "the inevitable consequence was the rejection of his application: NAVX v Minister for Immigration [2004] FCAFC 287 at [5]. (Emphasis added)

Consideration 24 At the outset, it is well to recall that, putting aside the one day extension of time issue, the critical question in this application is not whether the applicant has a satisfactory explanation for his failure to attend the hearing on 11 March 2015, but whether the Federal Circuit Court judge made any error in dismissing his application to reinstate his application for judicial review on that date, following his earlier failure to attend the hearing on 30 January 2015. It follows that the attempts the applicant made in his affidavit (see at [7] above) and submissions to offer an explanation for his non-attendance on 11 March 2015 is misguided. Instead, the critical question in this application is that stated above. 25 On that question, the Federal Circuit Court judge approached the application before him at two levels. First, he considered whether there were sufficient grounds for him to reinstate the applicant's application for judicial review. Secondly, while it was not strictly necessary to do so, he considered whether, in any event, there was any merit in the applicant's substantive application for judicial review. 26 At the first level, his Honour made a discretionary decision on a matter of practice and procedure. The applicant therefore needs to show some error of principle in that decision and that the decision caused him a substantial injustice: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 and Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [20]. 27 No such error of principle is present in his Honour's decision. As appears at [18]-[22] above, his Honour identified the relevant considerations by reference to the apposite authorities and addressed each of those considerations in turn in deciding not to exercise his discretion to reinstate the applicant's application. 28 The second consideration identified at [26] above goes to the merits of the applicant's substantive application for judicial review which, in turn, coincides with the second level at which the Federal Circuit Court judge approached the task before him (see at [25] above). On that matter, his Honour characterised the applicant's two grounds of review as unparticularised assertions for which he found no support in the Tribunal's decision: see at [23] above. Importantly, his Honour noted the fundamental problem the applicant faced in attempting to attack the Tribunal's decision when he had not accepted its invitation to attend a hearing to address the concerns it had with his application: see the emphasised part of [37] of SZUFS at [23] above. Again, no error is apparent in this reasoning. 29 Since the Federal Circuit Court judge made no error at either level of his approach to the application before him, it would be futile to grant the applicant his application for leave to appeal his Honour's decision to refuse to reinstate the applicant's substantive application for judicial review. That is to say, quite apart from the absence of any explanation for his one day delay in making this application, the applicant's challenge to the Federal Circuit Court judge's decision on the matter of practice and procedure has no merit and, moreover, his challenge to his Honour's decision on his substantive application also has no merit. It therefore necessarily follows that the applicant has failed to establish that the decision caused him a substantial injustice. 30 The applicant's application for an extension of time to make an application for leave to appeal must therefore be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.