FEDERAL COURT OF AUSTRALIA

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

THE COURT ORDERS THAT:

1.         The time for seeking leave to appeal from the orders of the Federal Magistrates Court of 27 January 2010 be extended to 22 February 2010, and the application filed on that day be treated as having been filed pursuant to the extension of time hereby granted.

2.         There be leave to appeal from the said orders of the Federal Magistrates Court of 27 January 2010, and the appeal be upheld.

3.         The said orders of the Federal Magistrates Court of 27 January 2010 be set aside.

4.         The application for reinstatement of the applicant’s application dated 12 June 2009 for review of the decision of the Refugee Review Tribunal given on 20 May 2009 be remitted to the Federal Magistrates Court to be heard and determined according to law. 

5.         There be no order as to the costs of the application for leave to appeal, or of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     Before the Court is an application for leave to appeal which is required by s 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), to appeal from an interlocutory judgment of the Federal Magistrates Court.  That interlocutory judgment, as it has been characterised in Rana v University of South Australia (2004) 136 FCR 344, is from a Federal Magistrate’s dismissal of an application to reinstate the proceeding which had been instituted by the applicant for leave.  The applicant has expressed his application in these terms:

1          The applicant applies for leave to appeal from the judgment of FEDERAL MAGISTRATE TURNER ON 27 JANUARY 2010

2          Leave to appeal is required by The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error. There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

3          The grounds of the application appear in the annexed affidavit.

The affidavit to which reference is there made, in turn, reads as follows:

I am [MZYEZ] applicant write that I was arrived on the hearing at 9.45 before 15 minute at federal magistrate court on 30 November 2009. On the same day i have reported at reception counter where she advised me to go to 2c i was waiting for some one to called my name but no one called my name on that day then i directly went to federal magistrate turner but they told me your case is dismissed because of not being appeared in court then i apply for reinstall my hearing and i court reinstalled my hearing on 27 January 2010. but they refused my application. Then i apply to federal court.

It is convenient to set out the circumstances which gave rise to the present application. 

The proceedings in the Federal Magistrates Court

2                     On 30 November 2009, Turner FM dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) under r 13.03C(1)(c) of the Rules of the Federal Magistrates Court, a course which was open to his Honour because of the applicant’s absence from the court room in which the hearing of his application was to take place.  Rule 13.03C provides, under the heading “Default of Appearance of a Party”:

(1)        If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

(a)        adjourn the hearing to a specific date or generally;

(b)        order that there is not to be any hearing, unless:

(i)         the proceeding is again set down for hearing; or

(ii)        any other steps that the Court directs are taken;

(c)        if the absent party is an applicant — dismiss the application;

(d)        if the absent party is a party who has made an interlocutory application or a cross claim — dismiss the interlocutory application or cross claim;

(e)        proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2)        If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non compliance with the order, that the Court thinks just.

The applicant then filed, on the same day, an application for reinstatement, which came before Turner FM on 27 January 2010. 

3                     Dealing with that application, the learned Federal Magistrate said in reasons delivered ex tempore on 27 January 2010, in MZYEZ v Minister for Immigration and Citizenship and Anor [2010] FMCA 202, that:

5          To have this matter reinstated, the applicant must satisfy the Court first that there is a sufficient explanation for his non-attendance on 30 November 2009. The court refers to the decisions in SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999 by Driver FM, especially in paragraph 6. The Court is satisfied that the matter was called outside court on 30 November 2009. The Court is not satisfied that the applicant, failing to hear his matter called, provided sufficient explanation for his non-attendance.

6          If the applicant satisfies the first criteria, the second criteria is whether the applicant has an arguable case. The court refers to two decisions, the first by Barnes FM in NAFG v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2003] FMCA 558, which was upheld on appeal by Jacobson J in NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389, which established the second criteria that has to be satisfied. As the applicant has not satisfied the first criteria, the Court is not required to consider whether the applicant has an arguable case. The application for reinstatement is therefore dismissed.

4                     His Honour’s inability to be satisfied that the applicant, MZYEZ, had “provided sufficient explanation for his non-attendance” was despite an affidavit filed by the applicant on 30 November 2009 where he expressed himself in these terms:

I am [MZYEZ] applicant write that I was arrive at hearing at 9:45 am 15 minutes before hearing, I ask from the receptionist that I come to the hearing for federal Magistrates Court and then she told me to go to room no 2C. and then I reached there.  I was very nervous because I do not know where to go but I was waiting outside room no 2C.  I wait for some time that someone will call me into the room.

I ask one lady that I am waiting here for my hearing for Court and she took me in to the court room then she ask the assistance of the Judge that I cam for the hearing which is go to held at 10:00 am, and then he told me that your case is dismissed because you did not come to the court at 10:00 am.  But actually I was sitting you side of courtroom that and waiting for someone will call me came the Court room for the hearing and I do not the process of the Court and I am very sorry for that.  Please re-instate my hearing.

5                     As to the circumstances there set out, his Honour was, first, satisfied that the applicant was called, by the acronym MZYEZ, outside court 2C, and, secondly, that the applicant must have been aware that the acronym related to him since he had been addressed by it in various correspondence, and on the court book which had been prepared for use in the Federal Magistrates Court.  His Honour did not therefore, consider, as appears from [5] of the portion of his reasons which I have already extracted, that the applicant had provided an adequate explanation for his absence.  Consequently, his Honour dismissed the application for the reinstatement of the proceeding which he had earlier dismissed by exercising his discretion to do so under the rules of the Federal Magistrates Court. 

6                     As appears from the terms of r 13.03C, it undoubtedly conferred a discretion to make the order which was made.  The narrow question which arises for determination before me is whether his Honour was correct on 27 January 2010 to refuse to reinstate the applicant’s substantive application for judicial review. 

Principles governing an application for reinstatement

7                     In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

(a)        whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out; 

(b)        the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; 

(c)        whether the applicant has a reasonably arguable prospect of success on the substantive application.  As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

(emphasis added)

8                     In this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim:  see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320. 

9                     It should also be observed that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted.  However, I do not perceive that the application of those requirements – first, that the decision in question be attended by sufficient doubt to warrant its reconsideration, and, secondly, that substantial injustice would flow were leave not granted (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, per Sheppard, Burchett and Heerey JJ, at 398) – would result in any different outcome in this case. 

Whether the learned Federal Magistrate’s discretion miscarried

10                  It follows from what I have said that the decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles stated as follows by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, at 504 to 505, where their Honours said:

But the judgment complained of, namely, sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the court imposing it.  The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance.

11                  As I have indicated, the learned Federal Magistrate proceeded by, first considering whether there was any reasonable excuse for the applicant’s absence from the hearing at 10 am on 20 November 2009.  His Honour then reasoned, at [6] of his reasons that his negative conclusion on that question entailed that:

As the applicant for leave has not satisfied the first criteria, the court is not required to consider whether the applicant has an arguable case.  The application for reinstatement is, therefore, dismissed.

12                  In support of this conclusion, the learned Federal Magistrate referred to the reasons of Jacobson J in NAFG v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2004) FCA 389.  In that case, however, Jacobson J was dealing with an application under s 24(1)(a) of the Federal Court Act for leave to appeal from an interlocutory judgment of the Federal Magistrates Court.  I do not consider that NAFG supports the approach taken by the learned Federal Magistrate in this case, primarily because there Jacobson J was able to examine a reasoned judgment dismissing the application given by the Magistrate, albeit in the applicant’s absence.  As his Honour said at [8]-[9] of his reasons:

8          … The Magistrate was prepared to proceed upon the basis that there was an explanation for the appellant’s failure to appear on 8 October 2003 but the magistrate was not satisfied that an arguable case had been shown. 

9          … The Magistrate referred at paragraph 9 of the judgment to the matters put by the appellant in support of the proposition that there was an arguable case.  The Magistrate stated that the claims were that there had been a denial of procedural fairness constituted either by bias or because the appellant was deprived of an opportunity to put his claims to the RRT, or to fully present his case to the RRT.

Here, as I perceive it, the applicant has never had an opportunity to put any submissions in support of the proposition that he had an arguable case for judicial review.  This, I consider, has led the learned Federal Magistrate’s discretion on the application for reinstatement to miscarry. 

13                  First, paraphrasing the principles enunciated in House v The King, his Honourfailed to take into account one and possibly two material considerations, namely the prejudice the Minister might have suffered if the application had been reinstated, and, more importantly, the existence of an arguable case on the merits which the applicant might have been able to advance.  I observe parenthetically that no immediate prejudice to the Minister from a grant of reinstatement suggests itself from the facts as so far disclosed.  Moreover, had the matter been raised, the Minister, as a model litigant, could have been expected to have conceded the absence of any such prejudice.  In any event, I consider that the learned Federal Magistrate, by not receiving or considering submissions as to the prospects of success of the substantive application, caused his discretion to miscarry. 

14                  It may not matter, in light of the conclusion which I have just reached about the failure of the learned Federal Magistrate to take into account a consideration relevant to the exercise of the discretion to reinstate the application, but I consider that his Honour was mistaken as to a matter of fact when he said:

The court is not satisfied that the applicant, failing to hear his matter called, provided sufficient explanation for his non-attendance.

15                  The undisputed facts appear to be, first, that the applicant was present in the precincts of the Court on the day, and at the time appointed for the hearing of his application.  Secondly, as soon as he learned that his application had been called on and dismissed, he took steps with the assistance of an officer of the court to have the application reinstated.  Thirdly, as I have been informed by Ms Koya, who appeared as solicitor for the Minister both on the present application and on the hearing of the original application on 30 November 2009, that two other matters were listed for directions before his Honour on that day.  As well, his Honour may have had listed before him other matters in the family law list.  Neither of the two matters in the federal law list for directions was a matter arising under the Migration Act or in which the applicant was designated by an acronym.  Ms Koya’s recollection is that the applicant’s application was called on for hearing before the non-family law matters in the directions list were dealt with.  In those circumstances, the most readily available inference is that the applicant, who has little understanding of English, did not hear that his application was being called on, or did not understand that what he heard was a reference to the hearing of his own application.  Either way, the inference would support a finding that the applicant had a sufficient explanation for his non-attendance.  The contrary finding requires the highly improbable conclusion that the applicant, despite his undisputed attendance at Court on the day in question, deliberately elected to absent himself from the hearing. 

16                  For these reasons, I have also been led to conclude that his Honour, in exercising his discretion by not reinstating the application, has “mistaken the facts” in the sense in which that expression is used in House v The King.  Accordingly, the application for reinstatement should be remitted to the Federal Magistrates Court for determination according to law. 

17                  There is one final matter.  In the written submissions filed on his behalf, the Minister points out that the applicant for leave requires an extension of time in which to seek leave to appeal from the Federal Magistrate’s order that the application for reinstatement be dismissed.  That was because that order was made on 27 January 2010, and the applicant for leave did not file his application in this court until 22 February 2010.  Ms Koya, for the Minister, did not concede or oppose the grant of an extension of time.  Given the very short time by which the applicant was beyond the 21 days which the Rules of this Court allow, between the making of orders and the filing and service of an application for leave to appeal, I consider that this is an appropriate case for the exercise of the discretion reposed in me by O 52 r 2 of the Rules of this Court to extend time so that the application for leave to appeal is to be taken to have been filed and served within time.

18                  Accordingly, the orders of the Court will be that:

1.         The time for seeking leave to appeal from the orders of the Federal Magistrates Court of 27 January 2010 be extended to 22 February 2010, and the application filed on that day be treated as having been filed pursuant to the extension of time hereby granted.

2.         There be leave to appeal from the said orders of the Federal Magistrates Court of 27 January 2010, and the appeal be upheld.

3.         The said orders of the Federal Magistrates Court of 27 January 2010 be set aside.

4.         The application for reinstatement of the applicant’s application dated 12 June 2009 for review of the decision of the Refugee Review Tribunal given on 20 May 2009 be remitted to the Federal Magistrates Court to be heard and determined according to law. 

5.         There be no order as to the costs of the application for leave to appeal, or of the appeal.

Associate:

Dated:         28 May 2010