S353 of 2003 v Minister for Immigration & Citizenship [2007] FCAFC 13

FEDERAL COURT OF AUSTRALIA

S353 of 2003 v Minister for Immigration & Citizenship [2007] FCAFC 13 MIGRATION – appeal from a decision of the Federal Court – where an order made in the absence of a party – where no adequate explanation for the non-attendance of a party. Migration Act 1958 (Cth) s 424A; Federal Court Rules, Order 35 rules 7(1), 7(2A), Order 51A, rule 5(1)

Lie v Refugee Review Tribunal & Ors No 3 174 ALR 681 Taylor v Taylor (1979) 143 CLR 1 at 8 S353 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD2602 OF 2005

EMMETT, ALLSOP & MIDDLETON JJ

12 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2602 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: S353 OF 2003

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGES: EMMETT, ALLSOP & MIDDLETON jj DATE OF ORDER: 12 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion dated 7 November 2006 and filed 8 November 2006 be dismissed. 2. The Appellant pay the First Respondent's costs of the Motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2602 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: S353 OF 2003

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGES: EMMETT, ALLSOP & MIDDLETON JJ

DATE: 12 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

EMMETT J: 1 We have before us a notice of motion that was filed on 8 November 2006. The notice of motion in terms seeks no relief. However, it appears to be intended to constitute an application to the Court to set aside orders made by the Full Court of the Court on 30 October 2006. It is necessary to go back a bit further than that to put the application in context. 2 Before doing so I should mention a communication received by the Court today by facsimile, from the Sydney South West Area Health Service. The facsimile communication is addressed to the New South Wales Registrar of the Court; it is marked urgent and contains a reference to this proceeding. It is expressed to be from the senior CMO of Bankstown Hospital. After referring to the applicant by name it says: "The above named patient has admitted into the Emergency department, Bankstown Hospital, from 6.17 today and he will be admitted to the Cardiology department for further evaluation of his chest pain." That was received by the Court at 10.50 am this morning. 3 The solicitor for the respondent, the Minister for Immigration and Citizenship ('the Minister'), has indicated to the Court that the Minister is prepared to treat that communication as an application for the vacation of today's hearing and would not object to the communication being admitted into evidence as truth of the facts asserted in it. Those facts are simply that the applicant was admitted into the Emergency Department of Bankstown Hospital this morning and that he will be admitted to the Cardiology Department for further evaluation of chest pain. 4 There is nothing to indicate that the applicant was unable to attend Court this afternoon. There is nothing to indicate why he could not have been represented by counsel who had been appointed pursuant to Order 80 in the circumstances to which I shall refer shortly. Having regard to the past history of this proceeding and to the inadequacy of any evidence to indicate that the applicant was unable to appear today, the Court is not disposed to vacate the hearing and will proceed in the absence of the applicant to determine the application. 5 The applicant is a national of India who first applied for a protection visa under the Migration Act 1958 (Cth) ('the Act') on 1 August 1997. A delegate of the Minister refused to grant that application on 13 November 1997. The applicant then sought review of the Minister's decision by the Refugee Review Tribunal ('the Tribunal'), which is the second respondent in the proceeding. The Tribunal affirmed the decision of the Minister's delegate on 18 October 2000; the applicant was notified of that decision on 7 November 2000. 6 In August 2001 the applicant became a represented person in the High Court proceeding numbered S89 of 1999, which resulted in a decision of the High Court reported as Lie v Refugee Review Tribunal & Ors No 3 174 ALR 681. On 20 June 2003, pursuant to orders made by Gaudron J on 25 November 2002, the applicant commenced a further proceeding in the High Court seeking Constitutional writ relief in respect of the Tribunal's decision. The only material filed in the High Court was a draft order nisi and an affidavit annexing the Tribunal's reasons for decision. That proceeding was remitted instanter to the Federal Court of Australia pursuant to the orders made by Gaudron J. 7 On 12 November 2004 the NSW District Registrar wrote to the applicant informing him that the Court was proposing to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court. On 9 December 2004 the applicant filed an affidavit purportedly sworn on 10 December 2004. In any event, as a consequence, the proceeding was listed for a directions hearing before Moore J on 29 September 2005. On that day Moore J made orders that the application for orders nisi be listed for hearing on 29 November 2005. His Honour directed that Order 51A, rule 5(1) of the Federal Court Rules not apply to the application. 8 The applicant filed written submissions in support of his application and appeared in person before Moore J on 29 November 2005. For reasons that his Honour gave ex tempore, his Honour dismissed the application for orders nisi with costs. On 22 December 2005 the applicant filed a notice of motion supported by an affidavit, seeking leave to appeal from the orders made by Moore J on 29 November 2005. On 25 January 2006 a notice of listing was sent to the parties, informing them that the matter would be listed for hearing on 13 March 2006 before Allsop J. When the matter came before Allsop J on 13 March 2006 there was no appearance by or on behalf of the applicant. However, the Court had received a facsimile earlier in the day purportedly despatched on behalf of the applicant, simply saying that the applicant was unable to attend the hearing because he had had an accident. 9 Notwithstanding the non-appearance of the applicant, Allsop J made orders that the Registrar approach the New South Wales Bar Association to obtain a barrister either amicus curiae or under Order 80 of the Federal Court Rules to provide written submissions to the Court prior to 26 April 2006 on the proper approach that should be taken to the application for leave to appeal in the light of the possible application of s 424A of the Act. His Honour stood the matter over for directions on 26 April 2006. 10 Subsequently, Mr David Knoll of counsel agreed to assist the applicant and the matter was relisted for 11 May 2006 at Mr Knoll's request. On that day Mr Knoll appeared before the Court, but informed Allsop J that he had been unable to contact the applicant. Allsop J then made directions to the effect that the Registrar and the Minister take such steps as are reasonable, and as soon as is reasonably practicable, but before 19 May, to contact the applicant to inform him that after hearing Counsel appointed under Order 80 the Court was minded to extend time to file and serve an application for leave to appeal and that the Court would not make such orders unless the applicant attended Court and asked for them, he having failed to appear on the earlier occasion. 11 His Honour fixed the matter for mention on 14 June 2006 for the purpose of hearing from the applicant. The applicant in fact appeared before Allsop J on 14 June 2006 and informed the Court what he said was his then correct address. Allsop J for reasons then given ex tempore, extended time for filing and serving an application for leave to appeal from the orders of Moore J. His Honour directed the applicant to file and serve as soon as practicable a draft notice of appeal setting out the grounds of the appeal and also to file and serve as soon as practicable any application to the Court to receive fresh evidence on the appeal should leave be granted. His Honour directed that, subject to the views of the Chief Justice, the application for leave to appeal and the hearing of the appeal and any cognate application for fresh evidence on the appeal be referred to a Full Court. 12 Finally, his Honour directed the Registrar to approach Mr Knoll in the first instance, and then the New South Wales Bar Association, to obtain assistance either as amicus curiae or under Order 80 of the Federal Court Rules for the preparation of the documents that his Honour directed to be filed. The reason for the direction in those terms was that the applicant indicated that he may not want the assistance of Mr Knoll and may want to make his own arrangements. 13 On 29 June 2006 a Deputy District Registrar wrote to the applicant confirming in writing the orders made by Allsop J on 14 June 2006. In the meantime on 26 June 2006, directions were given for the preparation of the appeal for hearing. On that day copies of the directions of 26 June 2006 were sent to Mr Knoll and to the Minister's solicitors. 14 There is some slight confusion concerning the listing of the matter for hearing. The matter was in fact listed for hearing at 2.15 pm on 30 October 2006. The Minister's solicitors received a formal notice of listing, dated 11 October 2006. On 12 October 2006 the Minister's solicitors wrote to the applicant informing him of the listing of the matter at 2.15 pm on 30 October 2006. The letter reminded the applicant of the orders made by Allsop J on 14 June 2006 and the directions made by the Deputy Registrar on 26 June 2006. The letter was addressed to the applicant at the address that he had notified to the Court on 14 June 2006, save for a possible misspelling. The solicitor for the Minister indicated that the spelling contained in the letter was in fact the spelling notified under the Act by the applicant to the Minister as his residential address. The spelling is such that it is unlikely that Australia Post would not have been able to deliver the letter. 15 However, the letter, having been posted on 13 October 2006, was in fact returned to the Minister's solicitors on 13 November 2006. It was simply endorsed "Return to Sender". One possible explanation is that the applicant had left the address in question shortly after 13 October. Indeed, there is evidence that he attended the Court on 7 November to file a notice of change of address. It is curious that the letter took such a long time to be returned. 16 However, in the meantime, the matter was listed for hearing at 2.15 pm on 30 October 2006. At that stage, the orders made by Allsop J on 12 June 2006 had not been complied with and indeed they still have not been complied with. There was no appearance for the applicant on 30 October 2006 and the Court constituted by Heerey, Mansfield and Emmett JJ ordered that the application for leave to appeal be dismissed with costs. 17 On 7 November, as I have said, the applicant filed a notice of change of address for service. It may be that it was on that occasion that he had found that his application by then had been dismissed. In any event, on 8 November 2006 he filed what purports to be a notice of motion. The notice of motion is in these terms: "On 14 June '06 the change of address informed to the Court has not been implemented which has resulted not receiving information on my Court proceedings. On 7 November '06 I was informed by the Court that a decision is already taken on 30 October '06 in my absence. Due to this error I was not able to attend the Court for lack of information. I request the Court to take this error into account and set another date for my hearing." An affidavit was filed at that same time which does little more than repeat what is contained in the notice of motion. As I understand the position, the Minister is prepared to treat the notice of motion as an application to set aside the orders made on 30 October 2006. 18 Attempts were made by the Minister's solicitor to communicate with Mr Knoll in the expectation that he had been appointed to represent the applicant or at least to give advice in connection with the preparation of the documents ordered by Allsop J to be filed by the applicant. The evidence before the Court indicates that Mr Knoll has had little success in communicating with the applicant. The applicant failed to give any instructions to Mr Knoll. Initially, Mr Knoll requested, when he became aware that the matter was listed for hearing today, that, being unavailable, that the matter be adjourned to another day. Subsequently the Court received a communication from Mr Knoll indicating that, due to lack of communication and instructions from the applicant, Mr Knoll no longer represented the applicant. 19 They are the circumstances that lead to the hearing today of what, as I have said, the Court is prepared to treat as an application to set aside the orders made on 30 October 2006. The Minister does not contend that the Court does not have power to make orders setting aside the dismissal order. Order 35, rule 7(2A) of the Federal Court Rules provides that: "The Court, where it is not exercising its appellate or related jurisdiction under division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where the order has been made in the absence of a party." That rule does not, in its terms, authorise the setting aside of the order because the Court is exercising appellate jurisdiction. The order of 30 October 2006 has been entered; that formality occurred on 6 November 2006. Accordingly, the power conferred by Order 35 rule 7(1) does not arise. 20 However, no provision of the Rules can deprive the Court of the inherent power that it has to set aside an order made in the absence of a party or an order made at a hearing of which the party had no notice (see Taylor v Taylor (1979) 143 CLR 1 at 8). That is to say, it is an incident of the exercise of the judicial power of the Commonwealth that the Court may, in an appropriate case, set aside its own order if it is satisfied that there is a proper explanation for the non-attendance of a party at a hearing at which the order is made. However, given that the power exists, it is clearly discretionary (see Taylor at 8). 21 There has been no adequate explanation for the non-attendance of the applicant today and no satisfactory explanation for the non‑attendance of the applicant on 30 October 2006, in the light of the steps taken by the Minister's solicitor to notify the applicant and Mr Knoll, whom the applicant knew had been appointed to represent him. 22 More significantly, there has been no explanation whatsoever for the failure by the applicant to comply with the directions made by Allsop J in June 2006. His Honour was disposed to extend the time for leave to appeal, but only on the basis that the applicant filed and served within a reasonable time, a notice of appeal specifying some grounds. His Honour, in the reasons given for making directions in 2006, outlines possible arguments. The applicant has had the opportunity of obtaining assistance from Mr Knoll. Whether he has done that or not, we do not know. What is known is that he has simply failed, without any explanation, to comply with the directions given by Allsop J. 23 In all of the circumstances I consider the appropriate course, having refused an adjournment today, is to dismiss with costs the notice of motion filed on 8 November 2006.