FEDERAL COURT OF AUSTRALIA

NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 718

NAZL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 808 of 2004

ALLSOP J

3 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application to set aside the orders made on 18 November 2004 by the Full Court comprised of Wilcox J, Sackville J and Finn J be stood over to a date to be fixed before a Full Court.

2.                  The costs of the application thus far be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 28 April 2004, a Judge of this Court dismissed the application of the appellant for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), which affirmed a decision of a delegate of the Minister not to grant a protection visa.

2                     As can be seen from the primary judge’s reasons, his Honour had some disquiet over how the Tribunal had dealt with certain material submitted to it after the hearing concerning the authenticity of the documents submitted about police charges the appellant said were falsely laid.  However, the primary judge was not persuaded of any jurisdictional error.  The primary judge noted that the ultimate decision of the Tribunal was not based upon the lack of authenticity of the documents in question.

3                     An appeal was filed which had as its ground of appeal a complaint concerning how the Tribunal had dealt with the documents to which the primary judge had made reference.

4                     Appeal books were prepared.  The matter was called on for hearing on 18 November 2004 before the Full Court.  There was no appearance by the appellant.

5                     The presiding judge said the following and the following exchange with counsel took place:

WILCOX J: There has been some contact with the Court and I’ll just read onto the record a note from Mr Tom Morgan, the Deputy Registrar.  He said this:

The appellant has faxed a medical certificate indicating he is not fit for work.

And he adds:

And presumably cannot attend Full Court hearing on 18 November 2004.  At the request of the associates to Justices Wilcox and Sackville I telephoned Mr NAZL and informed him that despite the Court having received a medical certificate he was still required to attend court on 18 November or have someone on his behalf preferably a lawyer appear on 18 November 2004.  I also informed Mr NAZL that if he does not appear and no one else appears on his behalf the consequence may be that his appeal may be struck out or dismissed in his absence.  Mr NAZL said he will see how he feels later on today and if necessary speak to the person who helped him with his appeal papers to see if he could attend the court on his behalf.  Mr NAZL also indicated he understood the consequences of his or another person on his behalf’s non-appearance on 18 November 2004.  Mr Morgan sent a letter to Mr NAZL confirming the above by express post but as that was only yesterday it seems probable that he would not yet have received it.

The medical certificate which was received and was sent to the members of the bench was from a Dr Mahar Milad of Campsie.  It is dated 16 November and it reads as follows:

To whom it may concern:  This is to certify that I examined Mr NAZL on 16 November 2004.  In my opinion Mr NAZL was/is suffering from ? food poisoning, diarrhoea, vomiting.  Mr NAZL was/will be unfit for work up to and including 17/11/04 to 20/11/04.

As indicated by Mr Morgan we took the view that the medical certificate required further elaboration if it was to be accepted as indicating Mr NAZL was not fit to participate and would arrange for somebody to participate.  I note that nothing has been heard from him further and nothing has been heard by the respondent’s solicitors from the appellant.  What course do you ask us to take, Ms Francois?

Ms Francois:   We would seek an order under Part 52 rule 38A, your Honour, that the appeal be dismissed.

WILCOX J  It should be added that the members of the bench have looked at the judgment appealed from, the decision of the Refugee Review Tribunal and the written submissions that were sent to the Court by the appellant.  In the opinion of all of us there appears to be no substance in the appeal.  Accordingly, the order of the court is that the appeal be dismissed with costs.

MS FRANCOIS:   As the Court pleases.

6                     Later that day the associate to the presiding judge made a note as to what later occurred.  It stated the following:

Approximately 20 minutes after the above appeal was dismissed by the Full Court due to the appellant’s absence when the appeal was called for hearing, a friend of the appellant, Mr Iqbel, arrived at the court and spoke to the court officer.  He said that he had not been able to find the court.

After liaising with Sackville and Finn JJ, Wilcox J asked me to inform Mr Iqbel that the Full Court would not reconvene because the appeal had already been dismissed.  He asked me to inform Mr Iqbel that:

(i)                 the appellant could apply to have the orders set aside by way of notice of motion; and

(ii)               the notice of motion would need to be accompanied by an affidavit setting out why the appellant wasn’t present in court and demonstrating that he has an arguable case that Emmett J’s decision was wrong.

I informed Mr Iqbel of these matters and asked him to pass on the contents of our discussion to the appellant.

7                     On 25 November 2004, the following orders of the Full Court were entered:

1.      The appeal be dismissed.

2.      The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

8                     On 2 December 2004 a notice of motion and an affidavit were filed in substance seeking to have the Full Court’s orders set aside.  The affidavit recounted the events referred to by the presiding judge about why the appellant had not appeared.  Brief submissions were attached as to the failings of the Tribunal.  No submissions were filed directed at displaying any error of the primary judge.

9                     The matter came on for directions before me on 16 March 2005.  After hearing the parties I made the following orders:

1.                  On or before 30/3/05 the applicant file and serve any further submissions on the appeal on the assumption that leave to argue the appeal were to be granted.

2.                  The matter proceed on the papers.

3.                  Stand the proceedings over to a date to be fixed for judgment or if the Court considers necessary hearing.

10                  The appellant filed submissions on 1 April 2004 in a form identical to those filed in 2004 prior to the appeal hearing.

11                  At the directions hearing before me, Mr Markus, who appeared for the respondent, submitted that I had no power to make any orders.  He said that to the extent that the Court was proceeding under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) (that is making an order for dismissal of the proceedings for failure of the appellant to attend a hearing relating to the appeal), there was no power to set aside the orders after entry.  He pointed (correctly) to the prefatory words in Order 35 rule 7(2) of the Federal Court Rules:

“where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act.”

12                  It may be an open question as to whether the power in Order 52 made rule 38A (2)(a) of the Federal Court Rules can be used after entry of the orders.  In any event it is by no means clear that a single judge can be “the Court” there referred to.  Indeed, I do not think it is.

13                  Further, there may be an issue as to an implied power in the Court to deal with its own orders and procedures: Caboolture Park v White Industries (1993) 45 FCR 224 at 234-35.

14                  This too it seems to me is a matter for a Full Court.

15                  A preliminary matter to be answered is what the Full Court in fact did on 18 November 2004.  Did it proceed with the hearing of the appeal as requested by counsel?  It is not clear to me that counsel in her request for an order for dismissal under Order 52 rule 38A was relying on sub-rule 38A(1)(c) (which had by then been repealed) or was making an application for the Court to proceed with the hearing under sub-rule 38A(1)(d).

16                  If the Court made its orders under s 25(2B)(bb)(ii), subject to Caboolture, there may be no basis for setting the orders aside.  If the Court made its orders under Order 52 rule 38A, sub-rule (2) may give the Full Court power to set aside its orders.

17                  Given that I think that there is force in Mr Markus’ arguments as to the lack of power in a single judge to use Order 35 r 7(2) to set aside an order of a Full Court, the appropriate course is to refer the application to a Full Court.  It will be a matter for others to decide whether this should be the Full Court that made the orders on 18 November 2004.  By reference to matters referred to above, there would seem to be merit in that course.

18                  It should be noted that the submissions of the appellant thus far filed provide no insight into the possible existence of error by the primary judge, and the explanation for the absence of the appellant on 18 November 2004 does not take the matter beyond that recounted by the presiding judge on 18 November 2004.

Associate:

Dated:              3 June 2005