SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 (3 May 2007)

Last Updated: 4 May 2007

FEDERAL COURT OF AUSTRALIA

SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61

PROCEDURE – appeal dismissed by reason of absence of appellant pursuant to s25(2B)(bb)(ii) of Federal Court of Australia Act 1976 – order dismissing appeal entered – Court has power under s25(2B)(bc) to set that order aside notwithstanding entry – application otherwise dismissed.

Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ba), (bb) and (bc)

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 referred to and considered
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 applied
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 discussed
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 applied
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 applied
Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 applied
Pantzer v Wenkart [2007] FCAFC 27 referred to
PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 applied
S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 discussed and in part disapproved
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 referred to
Taylor v Taylor [1979] HCA 38; 143 CLR 1 referred to
The Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285 applied














SZISM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1772 OF 2006

BLACK CJ, WEINBERG & ALLSOP JJ
3 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1772 OF 2006

BETWEEN:	SZISM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	BLACK CJ, WEINBERG & ALLSOP JJ
DATE OF ORDER:	3 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application to set aside the orders of the Court made on 16 February 2007 and entered on 27 February 2007 be dismissed.
2. The parties file any submissions on costs within 14 days.

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		NSD 1772 OF 2006
BETWEEN:	SZISM Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	BLACK CJ, WEINBERG & ALLSOP JJ
DATE:	3 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1 This is an application, by motion, to set aside orders made by a Judge of the Court on 16 February 2007 dismissing an appeal from the Federal Magistrates Court, with costs: SZISM v Minister for Immigration and Citizenship [2007] FCA 130. His Honour’s orders were made in response to the applicant’s failure to appear when his appeal was called on for hearing. We will, for the sake of convenience, refer to the applicant hereafter as the appellant.

2 The orders were formally entered on 27 February 2007. Counsel for the Minister contends that, for this reason, they cannot now be set aside and that the application must be dismissed.

3 The appellant is a citizen of India who claimed to be entitled to a protection visa by reference to his claims that he feared persecution in India based on his political opinion as a Sikh if he returned to India. On 3 November 2005, a delegate of the first respondent refused his application for a Class XA Protection visa. On 23 March 2006, the Refugee Review Tribunal (the "Tribunal") handed down a decision made on 3 March 2006 affirming the delegate’s decision. The appellant sought judicial review of that decision in the Federal Magistrates Court. On 24 August 2006, orders were made by that Court including an order dismissing the appeal and an order that the appellant pay the first respondent’s costs: see SZISM v Minister for Immigration and Multicultural Affairs [2006] FMCA 1330.

4 An appeal was filed and it came on for hearing on 15 February 2007 before the Judge who dealt with the matter as a single Judge of this Court: cf s 24(1AA) of the Federal Court of Australia Act 1976 (Cth) (the "Act"). There was no appearance by the appellant when the appeal was called on for hearing. There was no suggestion that he had not been given adequate notice of the date, time and place of the hearing. In an affidavit relied on in this application (upon which there was no cross-examination) the appellant swore that he did not attend the hearing because he was ill, having become ill the day prior to the appeal and having remained ill for three days. He swore that he remained in bed for those three days, that he was unable to walk, that he had no telephone in his room and that he had no one to take him to the doctor.

5 On 16 February 2007, the Judge made the following orders:

1. The description of the first respondent be amended to "Minister for Immigration and Citizenship".
2. The Refugee Review Tribunal be added as the second respondent.
3. The appeal be dismissed.
4. The appellant pay the first respondent’s costs of the appeal.

6 As previously indicated these orders were entered on 27 February 2007.

7 The reasons of the Judge are clear as to the basis of the orders. In [2], [3], [4] and [19] of his reasons, his Honour said as follows:

When the appeal was called the appellant, who is unrepresented, did not appear.  Directions were given for the appeal to be called and a search made for the appellant in the vicinity of the courtroom, in the registry and on the ground floor of the building.  This was done but without locating the appellant.  A telephone call was placed to the appellant at his telephone number on the record of the Court.  The result was that it was ascertained that the number had been disconnected.  The first respondent tendered a letter dated 12 February 2007 addressed to the appellant at his address on the record and sent by express post.  The letter enclosed a copy of the first respondent’s submissions, confirmed the date, time and place of the hearing of the appeal and stated that, in the event of his non-appearance at the hearing of the appeal, the first respondent would move for the dismissal of the appeal.  
Authority for the dismissal of the appeal resides in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  I was satisfied that, in the terms of that paragraph, the appellant had failed to attend the hearing of the appeal.  Accordingly I made an order to that effect and other orders appropriate to resolve the matter.

Section 25(2B)(bc) relevantly provides a power for a single judge or a Full Court to vary or set aside an order under par (bb).  In view of that possibility counsel for the first respondent, whose written submissions are relied upon in what follows, accepted that there would be utility in my setting down my reasons on how the appeal would have fallen to be resolved on what is presently before the Court.  What follows are those reasons.

...

If the appellant had attended the hearing and had not made any submissions, the above reasons would have been the reasons for which I would have dismissed the appeal.  However, as the appellant did not attend the hearing of the appeal, it was dismissed on the ground of that non-attendance, as set out above. 

8 In [5] to [18] of his reasons, the Judge also dealt with the appellant’s claims, the Tribunal’s reasons, the Federal Magistrate’s reasons and the grounds of appeal. There was debate before us as to what his Honour did in this regard. We see no lack of clarity in the steps he took. The orders were made under s 25(2B)(bb)(ii) of the Act. Section 25(2B) is in the following terms:

A single Judge or a Full Court may:

(a) join or remove a party to an appeal to the Court; or
(aa) give summary judgment; or
(b) make an order by consent disposing of an appeal to the Court (including an order for costs); or
(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or
(bb) make an order that an appeal to the Court be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the appellant to attend a hearing relating to the appeal; or
(bc) vary or set aside an order under paragraph (ba) or (bb); or
(c) give directions about the conduct of an appeal to the Court, including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.

9 It is clear that [5]-[18] of the Judge’s reasons were not the reasons for the order dismissing the appeal. The reason for that order was the failure to appear: see [4]. The reasons in [5]-[18] were given for the assistance of a Judge or the Full Court in any application under s 25(2B)(bc): see [7] . This application is such an application.

10 The first respondent submitted that the Judge proceeded under Order 52 r 38A(1)(d) of the Federal Court Rules and that in dismissing the appeal the primary judge exercised power under s 28(1)(b) of the Federal Court of Australia Act. Order 52 r 38A and s 28(1)(b) are in the following terms:

O 52 r 38A Absence of party
(1) If a party is absent when an appeal is called on for hearing, the Court may:
(a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or
(b) adjourn the hearing; or
(c) (repealed)
(d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal.
(2) If the Court proceeds with the hearing under paragraph (1)(d), the Court may:
(a) set aside or vary any order made after so proceeding; and
(b) give directions for the further conduct of the appeal.

s 28 Form of judgment on appeal

(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
...
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
...

11 We reject the submission that the Judge proceeded under either of these provisions. The Judge’s reasons are perfectly clear; he did not proceed with the hearing in a way that disentitled him from making an order under s 25(2B)(bb)(ii). The appellant’s failure to appear was the basis of the order that he made.

12 The orders made by the Judge have been entered. The first respondent submitted that in those circumstances there was no power to set aside the orders and that, on its proper construction, s 25(2B)(bc) only permitted the setting aside of orders before entry. That being so, it was submitted, there was no implied or inherent power in the Court to set aside entered orders in these circumstances. Reliance was placed in this respect on DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226.

13 Paragraphs (bb) and (bc) of s 25(2B) were introduced in their current form by the Law and Justice Legislation Amendment Act 2004 (Cth) (Act no. 62 of 2004) (the "LJLA Act"). At about the same time Order 52 r 38A was amended by Statutory Rule 2004 No 281 which, amongst other things, deleted Order 52 r 38A(1)(c) and made consequential amendments to Order 52 r 38A(2).

14 The Explanatory Memorandum to the Bill which became the LJLA Act described the purpose of the provisions which made the amendments to s 20 (dealing with the exercise of original jurisdiction) and s 25 (dealing with the exercise of appellate jurisdiction) as follows:

33. These items amend the Federal Court of Australia Act to enhance the operational effectiveness and efficiencies of the Federal Court by ensuring that a single judge is able to deal with ancillary and interlocutory matters without the need to constitute a Full Court. All powers extended to single judges are existing powers exercised by the Full Court.
34. Item 18 amends subsection 20(5) of the Act, which provides that a single judge or a Full Court may make certain orders or directions, including an order that the matter be dismissed for failure to comply with a direction of the court (paragraph 20(5)(d)). The amendment will allow a single judge or a Full Court to also make an order that a mater be dismissed for failure of the applicant to attend a hearing relating to the matter.
35. This item also allows the Full Court or a single judge to make an order that varies or sets aside an order made under paragraphs 20(5)(c) (dismissing a matter for want of prosecution) or (d) (dismissing a matter for failure to comply with a direction or for failure of the applicant to attend a hearing relating to the matters). This means that any order dismissing a matter can be set aside and the matter reinstated.
36. Item 19 amends section 25 of the Act, which provides for the exercise of appellate jurisdiction. Section 25(2B) provides for certain powers to be exercised by a single judge or a Full Court. Subsection 25(2B) will be amended to provide that a single judge or a Full Court may make an order dismissing an appeal by reason of non-attendance at any hearing by the appellant. The amendment will also enable a single judge to set aside or vary such orders.

15 Thus ss 20(5)(d) and (da) and 25(2B)(bb) and (bc) came to be mirrors of each other in the original and appellate jurisdictions. These provisions took this form in the Act at a time when the Rules contained Order 52 r 38A (in relation to appellate jurisdiction) and Order 35 r 7. Order 52 r 38A in its current form is set out at [10] above. Prior to 2004 it took the following form:

(1) If a party is absent when an appeal is called on for hearing, the Court may:

(a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or
(b) adjourn the hearing; or
(c) if the absent party is an appellant or cross-appellant dismiss the appeal or cross-appeal; or
(d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

(2) If an order is made under paragraph (1)(c) to dismiss an appeal or cross-appeal, or an order is made after the hearing proceeds under paragraph (1)(d), the Court may, on motion by the party against whom the order is made:

(a) set aside or vary the order; and
(b) give directions for the further conduct of the appeal.

(Parts removed in 2004 highlighted.)

16 At all relevant times Order 35 r 7 was in the following terms:

(1) The Court may vary or set aside a judgment or order before it has been entered.
(2) 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:
(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the appointment of a receiver;
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.

17 It may be accepted that the form of the Rules at the time of the passing of the LJLA Act were part of the legal context in which that legislation was enacted. But the Rules, as delegated legislation, do not control the meaning of words used by Parliament. In this context, it was submitted by the first respondent that Order 35 r 7(2) impliedly restricted the circumstances in which orders in the appellate jurisdiction could be set aside. We do not agree. Order 35 r 7(1) deals with any order (original or appellate jurisdiction). Order 35 r 7(2) is in terms directed to original jurisdiction. It does not contain an implied prohibition on the exercise of appellate jurisdiction or related jurisdiction under Division 2 of Part III of the Act.

18 The clear purpose of s 25(2B)(ba), (bb) and (bc) is the efficient dispatch of Court business. Parties who do not prosecute an appeal, who fail to comply with a direction of the Court or who fail to attend relevant hearings face dismissal of their appeal for such conduct, without a hearing. Section 25(2B)(bc) can be seen as providing a safeguard to ensure that any injustice resulting from the invocation of s 25(2B)(bb) can be rectified. A limitation of the operation of s 25(2B)(bc) to circumstances where there has been no entry of the order dismissing the appeal as contended for by the first respondent would not advance that purpose; rather, it would undermine the safeguard, and so undermine the confident use of the power to dismiss. If s 25(2B)(bc) were limited to circumstances where there had been no entry of the order, there would be introduced the potential not only for arbitrary consequences of the provision in operation, but also for significant injustice. Examples are easy to contemplate. A litigant does not appear on his appeal for good reason – accident or misadventure; an order is made; with the assistance of computerized recording and efficient staff, entry occurs promptly. Why should a litigant not have the benefit of the dispensation by way of the safeguard contemplated by s 25(2B)(bc)? No rational purpose conformable with the efficient and just dispatch of the Court’s business would deny that person relief under s 25(2B)(bc), yet also provide it to someone lucky enough to benefit from less efficiency in the entry of orders.

19 The first respondent pointed to the considerations to be found in the reasons of the majority in DJL v The Central Authority [2000] HCA 17; 201 CLR 226 and of Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529. These considerations stressed the finality of perfected orders and the promotion of the due administration of the law and justice by certainty of the final disposition of proceedings: see DJL v The Central Authority 201 CLR at [38] and Bailey v Marinoff 125 CLR at 530 per Barwick CJ. Those considerations are, of course, important. But it is to be recalled that the provision here is dealing with the summary procedural disposal of appeals in circumstances of some apparent default. That was also the case in Bailey v Marinoff [1971] HCA 49; 125 CLR 529, where a self executing or guillotine order had been made by the Court of Appeal Division of the Supreme Court of New South Wales. In Bailey v Marinoff [1971] HCA 49; 125 CLR 529, however, there was no provision dealing with the setting aside of the order such as s 25(2B)(bc).

20 Section 25(2B)(bc) is the grant to the Court of a power in general terms. As a rule provisions conferring judicial power on a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament: for example, see Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 313 and 316; The Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285 at 301; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 81; CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 at 201 [110]; and Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 27 [81]. In our view, to construe s 25(2B)(bc) as limited to orders not entered would not only infringe this principle, but would also bring arbitrariness and the potential for injustice to the operation of a provision that was intended to act as a safeguard for the confident exercise of a summary procedural power. Such an intention of Parliament is unlikely.

21 For these reasons, s 25(2B)(bc) grants clear statutory power to set aside the orders of the primary judge made on 15 February 2007, notwithstanding their entry.

22 This conclusion about the content of s 25(2B)(bc) makes it unnecessary to deal with the arguments put forward on the appeal concerning the second asserted basis of power to set aside the orders – implied or inherent power. This, of course, was the subject of DJL v The Central Authority [2000] HCA 17; 201 CLR 226 in the context of a discussion of the powers of the Family Court of Australia. It is not appropriate for us to deal with these arguments and the issues raised by them, including the scope and effect of s 23 of the Act in the absence of the need to do so. We should note, however, that the reasons of the judges of the Full Court in S353 of 2003 v Minister for Immigration and Citizenship [2007] FCAFC 13 were given in the context of a concession by the Minister that power existed to set aside the order, though entered. The comments of Emmett J at [20] with which Allsop J and Middleton J agreed referred to the inherent power of the Court to set aside an order made in the absence of a party or at a hearing of which the party had no notice. Reference was made by Emmett J only to Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 8. In the light of DJL v The Central Authority [2000] HCA 17; 201 CLR 226, such an unqualified proposition even supported by Taylor v Taylor [1979] HCA 38; 143 CLR 1 is difficult to maintain: see the comments of Black CJ in Pantzer v Wenkart [2007] FCAFC 27. The comments made by Emmett J, with which Allsop J and Middleton J agreed, were obiter dicta and made in the context of the concession to which we have referred. They should not be taken as authority for an unqualified proposition of the lack of relevance of DJL v The Central Authority [2000] HCA 17; 201 CLR 226 to any examination of this Court’s power. What authority this Court has by implication to take any particular step and the relevance of s 23 of the Act to any such question need not be considered for the disposition of this application.

23 There being power to set aside the orders of the primary judge, the question is whether that power should be exercised.

24 Dr Stern, who appeared for the appellant, submitted that the order should be set aside for three reasons: first, the non-attendance at the appeal was explained; secondly, the appellant has not had an opportunity to put his arguments on appeal; and, thirdly, the appellant’s complaints of error were arguable or, at least, not shown to be hopeless.

25 Dr Allars, who appeared for the first respondent, submitted that there had been only a weak explanation of non-attendance, that there had been no explanation of the delay from the making of the orders up to the time of entry of the orders and that there was an absence of any real likelihood of success on appeal.

26 The argument put forward that there was error in the judgment below was founded on the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592. It was submitted that a comparison between the reasons of the delegate and those of the Tribunal revealed a greater reliance upon country information by the Tribunal than by the delegate. This greater use required, it was submitted, the provision of the country information to the applicant for his consideration. In the absence of being given that material, it was submitted that the appellant had not been afforded the process of review contemplated by s 425 of the Migration Act 1958 (Cth).

27 We cannot agree. The Tribunal comprehensively disbelieved the applicant. In no small part that disbelief was founded upon the Tribunal’s considerations of country information. The Tribunal’s reasons, however, are replete with the appellant being taxed with what the Tribunal saw as the relevant parts of this material. There is no basis on the material before us to conclude that such differences in approach to the appellant’s claims as exhibited in the reasons of the delegate and the Tribunal were not fairly put to the appellant at the hearing. Neither SZBEL [2006] HCA 63; 231 ALR 592 nor the Migration Act requires the text of country information necessarily to be supplied to an applicant. Whether or not an issue relied upon by the Tribunal can be said to have been one which should have been raised with the applicant will be a matter for assessment of fairness in each case. Here, on the material available, there is no foundation apparently available for any conclusion of unfairness by the Tribunal.

28 No substantive submission was put by Dr Stern that s 424A had not been complied with. She did, however, expressly on instructions, raise s 424A. The Tribunal’s reasons do not display any arguable basis to conclude that s 424A was not complied with.

29 We accept in the circumstance that the non-attendance at the appeal has been explained. In the circumstances, we place no weight on the asserted lack of explanation of the delay for the time between the making of the orders and their entry.

30 For the above reasons the application under s 25(2B)(bc) to set aside the orders of the primary judge should be dismissed.

31 Though the applicant has lost the application, he succeeded on the primary legal point argued. For that reason we will hear the parties on costs.

32 The orders of the Court will be that the motion by amended notice of motion to set aside the orders of the Court on 16 February 2007 be dismissed. The parties will have 14 days to file submissions on costs.

33 The Court is grateful for the careful and lucid arguments, both written and oral, of counsel for both sides. The Court is particularly grateful to Dr Stern for appearing pursuant to Order 80 of the Federal Court Rules. The willingness of the profession to provide assistance under Order 80 when requested assists significantly in the due administration of justice.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Weinberg and Allsop.

Associate:

Dated: 3 May 2007

Counsel for the Appellant:	Dr K Stern appeared pursuant to a request under Order 80
Counsel for the First Respondent:	Dr M Allars
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	19 April 2007
Date of Judgment:	3 May 2007