SZHJE v Minister for Immigration and Citizenship (No 2) [2007] FCA 1037

FEDERAL COURT OF AUSTRALIA

SZHJE v Minister for Immigration and Citizenship (No 2) [2007] FCA 1037

PRACTICE AND PROCEDURE – appellant failed to appear – appeal dismissed on merits – application to set aside order – appellant's grounds of appeal and written submissions considered by the Court Held: No reason to depart from decision to dismiss the appeal. Application dismissed.

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Federal Court Rules O 35 r 7

De L v Director-General, NSW Department of Community Services (1997) 190 CLR 207 cited SZHJE v Minister for Immigration and Citizenship [2007] FCA 904 related SZHJE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD525 OF 2007

COLLIER J

9 JULY 2007

BRISBANE (VIDEO TO SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD525 OF 2007

BETWEEN: SZHJE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE OF ORDER: 9 JULY 2007

WHERE MADE: BRISBANE (VIDEO TO SYDNEY)

THE COURT ORDERS THAT:

1. The application filed 19 June 2007 be dismissed. 2. The appellant pay the costs of the first respondent to be fixed in the sum of $500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD525 OF 2007

BETWEEN: SZHJE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE: 9 JULY 2007

PLACE: BRISBANE (VIDEO TO SYDNEY)

REASONS FOR JUDGMENT 1 I have before me an application filed 19 June 2007 seeking an order that the orders made by the court in this matter on 13 June 2007 be set aside. Those orders are the orders made in the substantive judgment in this matter SZHJE v Minister for Immigration and Citizenship [2007] FCA 904. In that case, I dismissed an appeal by the appellant against the decision of Emmett FM of 14 March 2007 which had, in turn, dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 29 August 2005 and handed down on 20 September 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 2 Although I am considering an application filed by the appellant in the substantive matter, for convenience I shall continue to refer to SZHJE as "the appellant". The appellant did not attend the hearing before me on 13 June 2007 and seeks to have the orders made that day set aside. The appellant's submission is that he did not receive the letter notifying him of the hearing before me on 13 June 2007 and, therefore, did not attend the hearing. The appellant further submits that he had filed information in preparation for the hearing and it was evident from this action that he wanted to attend. However, he could not do so because he was not aware of the hearing date. 3 I note by way of background that this matter first came before me on 22 May 2007. Both parties were present. At that hearing, it became apparent that an adjournment would be necessary as the appellant may not have received a copy of the reasons for decision of the learned Federal Magistrate and that in the interests of justice he should have an opportunity to consider her Honour's reasons. (I noted at that hearing that the decision of the Federal Magistrate was delivered on 14 March 2007 at which time her Honour indicated that the reasons for her decision would be given at a later date and that I understood that reasons for her Honour's decision were given on 7 May 2007.) 4 The hearing was subsequently relisted for 13 June 2007 and the appellant filed written submissions on 4 June 2007. In my judgment in SZHJE [2007] FCA 904 at [16]-[18] I outlined the measures taken by the court and the respondent to notify the appellant of the hearing date and indicated that I was satisfied that all reasonable attempts had been made to notify the appellant of the hearing. 5 The appellant has said in court this morning that his appeal was dismissed on 13 June 2007 because he did not appear. This is not the case. As I made clear during the 13 June 2007 hearing, and as I specifically indicated in my judgment, I was not prepared to adjourn the hearing for want of appearance. In view of the material before the court, I was prepared to decide this matter on the merits of the material before me. My reasons for decision in respect of each of the appellant's grounds of appeal are set out in SZHJE [2007] FCA 904 at [23]. 6 Accordingly, I note that this is not a case where the appellant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) Federal Court of Australia Act 1976 (Cth) because the appellant failed to attend the hearing. In light of this, the question is upon what basis the appellant could seek to have my orders in SZHJE [2007] fca 904 set aside. One clear avenue is by way of appeal from that decision, which is not a matter for this court. Another possible ground is in terms of O 35 r 7 Federal Court Rules which provides in O 37 r 7(1): "The court may vary or set aside a judgment or order before it has been entered". Order 35 r 7(2) is not applicable in these circumstances because the court is exercising its appellate jurisdiction. 7 No submissions have been made this morning as to whether my judgment or order of 13 June 2007 have been entered. Considering the situation on the best case of the appellant, however, comments of Toohey, Gaudron, McHugh, Gummow and Kirby JJ in De L v Director-General, NSW Department of Community Services (1997) 190 CLR 207 are relevant. 8 In that case, their Honours said at 215 as follows (omitting citations): The power of this court to reopen its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this court, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. 9 To the extent that such comments are applicable in the case before me, I note that this matter was heard by me on 13 June 2007 and decided on the appellant's grounds of appeal and submissions of both the appellant and the first respondent. It is unfortunate that the appellant did not appear at that hearing and that additional time and expense have been incurred on account of this application. However, I am not persuaded that there is any reason to depart from my decision in SZHJE [2007] FCA 904. I have considered all the appellant's claims in full in that judgment and am not satisfied that this is a case where there has been some misapprehension as to facts or law or some accident or oversight has occurred which occasions an injustice such that the decision should be set aside. No further submissions have been made by the appellant today which persuade me that there is an appellable error in the decision of the court below, which could justify a review of my decision and orders of 13 June 2007.