Case: SZHJE v Minister for Immigration and Citizenship [2007] FCA 904
Outcome: related
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. 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. 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. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 11 July 2007 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 9 July 2007 Date of Judgment: 9 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1037.html