Case: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 , 158 FCR 292
Outcome: cited
express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] . Considerable doubt has been thrown upon the observations in S353 by the decision of the Full Court in SZISM. In SZISM , the Court concluded that s 25(2B)(bc) was the power there available to be exercised and made the following observations as to the approach being advanced in S353 : [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 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.