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MIGRATION - Where applicant's application dismissed under Order 32 rule 2 of the Federal Court Rules due to non-attendance at hearing - where an order was made giving the applicant the opportunity to restore the matter by giving explanation for non-attendance - where there was no amended application filed - whether there are any exceptional reasons for restoring the matter.

NACA v Minister for Immigration (No.2) [2003] FMCA 234 (6 May 2003)

NACA v Minister for Immigration (No.2) [2003] FMCA 234 (6 May 2003)
Last Updated: 19 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACA v MINISTER FOR IMMIGRATION (No.2)
[2003] FMCA 234



MIGRATION - Where applicant's application dismissed under Order 32 rule 2 of the Federal Court Rules due to non-attendance at hearing - where an order was made giving the applicant the opportunity to restore the matter by giving explanation for non-attendance - where there was no amended application filed - whether there are any exceptional reasons for restoring the matter.



Applicant:
NACA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1233 of 2002



Delivered on:


6 May 2003



Delivered at:


Sydney



Hearing date:


6 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $1,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1233 of 2002

NACA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. On 4 April 2003 I made orders dismissing this application on the grounds of the applicant's non-attendance. The order was made under Order 32, rule 2(1)(c) of the Federal Court Rules. Order 32 rule 2(2) allows the court on motion to set aside or vary an order made under Order 32 rule 2(1) and at the conclusion of my judgment I said this:

"The applicant will have an opportunity if he wishes to make an application to restore the matter. He will have to file an affidavit explaining why he was not in attendance and I would order him to comply with the original orders of the Registrar concerning the filing of an amended application and an affidavit upon which he intends to rely so that all these things can be considered if the application under Order 32 rule 2 is made."

2. The applicant did take out a notice of motion and did file an affidavit explaining why he was not in attendance. The reasons given in his affidavit are:

"The reasons for my absence are I wrongly noted in my form on the directions date it was 9 April 2003 at 10.00 am. I was prepared to go to the court on 9 April. I was mentally and financially upset due to my present circumstances. I did not go through the letters properly when Federal Court sent me the letters. This is my mistake and I urge the Registrar and the Federal Magistrate to give me a chance for another hearing date."

3. What the applicant did not do was to provide an amended application and an affidavit in support which would at the very least indicate a prima facie argument for review of the original decision. In my judgment, I indicated that so far as I could see the applicant was arguing that the Tribunal was wrong to have disbelieved him in relation to the claims which he made. I pointed out that that was not a jurisdictional error.

4. Mr Chami, who appears on behalf of the Minister, takes the view that as the orders in this matter have been entered, the appropriate order under which the right to have the case restored is Order 35 rule 7 of the Federal Court Rules which are duplicated in Rule 16 of the Federal Magistrate's Court Rules and in particular Rule 16.05(2). I do not propose to make any finding on whether that is the appropriate order or Order 32 rule 2 is the appropriate order because I think that in both cases the court is required to be satisfied both that there is a reasonable excuse for the applicant's original non attendance and that there is some purpose in re-hearing the case. I'm not satisfied as to either.

5. Mr Chami has kindly provided me with a copy of the judgment in Capital Redworks Pty Limited v Adult Shop.com Ltd [2002] FCA 389 where His Honour Nicholson J accepted the findings of the Federal Court in Wati v Minister for Immigration (1997) 148 ALR 578 that:

"The authorities there referred to stressed the need for great caution in the existence of circumstances which are quite exceptional."

In his helpful written submissions, Mr Chami also refers to Del v Director General, New South Wales Department of Community Services (1997) 190 CLR at 215 where the High Court said:

"It has been repeatedly said that a heavy burden is cast upon the applicant for reopening to show that such exceptional course is required `without fault on his part'."

6. The applicant has provided an excuse for his non-attendance but by no stretch of the imagination could it be said that it was not his fault.

7. Given my very serious doubts, previously expressed, as to the possibility of success in this case, the applicant's complete failure to abide by the order which I made to provide an amended application and affidavit in support and the weakness of his excuse, I dismiss this notice of motion to reopen the case and order that the applicant pay the respondent's costs which I assess in the sum of $1,500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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