Hassan v Minister for Immigration and Multicultural Affairs [2002] FCA 377

FEDERAL COURT OF AUSTRALIA

Hassan v Minister for Immigration and Multicultural Affairs [2002] FCA 377 MIGRATION – application brought under Order 35 rule 7 of Federal Court Rules to set aside earlier judgment made in applicant's absence – applicant claimed sickness precluded his attendance at original hearing – whether any legal basis for review of earlier judgment – subsequent arrangements consensually made for applicant's lawful departure from Australia

Federal Court Rules Order 35 rule 7

MUNAWAR HASSAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOTHER N 1575 of 2001 CONTI J 27 MARCH 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1575 OF 2001

BETWEEN: MUNAWAR HASSAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 27 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant's Notice of Motion dated 15 March 2002 be dismissed.

2. No order as to costs be made in respect of the Notice of Motion dated 15 March 2002.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1575 OF 2001

BETWEEN: MUNAWAR HASSAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 27 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 5 February 2002 I ordered that Mr Hassan's application to the Court for review of the decision of the Migration Review Tribunal ("MRT") of 11 July 2001 be dismissed for the reasons there set out. 2 Mr Hassan has now made application pursuant to Order 35 rule 7, sub-paragraph 2(a), of the Federal Court Rules by way of a Notice of Motion ("N/M") dated 15 March 2002, to set aside or review my orders of 5 February 2002. Order 35 rule 7(2)(a) provides as follows: "7(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where – (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; …" 3 Mr Hassan has stated in his N/M, as the ground for setting aside my earlier judgment, that he was sick on the day of the hearing and could thus not appear at the Court, and further that what he now seeks to obtain is a substantive visa for a period of 28 days, or less, whatever is suitable, rather than the bridging visa he currently holds, which apparently provides that he has a period of 28 days to leave the country after a determination in relation to same, and which period I assume would have started to run after my judgment of 5 February 2002. His reasoning for this request is that the grant of a substantive visa would allow him to declare to any government authority that he has "never been refused a visa from the Australian Immigration Department within [the] last 5 years". Mr Hassan has made it clear that he is not requesting another long stay visa, since he has already spent more than six months in Australia after the MRT decision which was handed down on 11 July 2001. 4 In my reasons for judgment of 5 February 2002, I pointed to the circumstance that the communication by Mr Hassan to the Minister and/or the Court, merely that he was unable to attend on the last hearing day because of illness, was not sufficient ground for his entitlement to an adjournment, the matter having been set down for hearing for some period of time, and in any event no medical evidence having been provided by Mr Hassan. I also observed that in any event, no valid grounds for review of the Minister's decision according to law were disclosed in his Notice of Appeal, and that his appeal was therefore in any event without legal foundation. 5 Mr Hassan has repeated his claim that he was sick on 5 February 2002, and he has enclosed certain annexures in support of this contention, which do not include any certificate from a medical practitioner as to the nature or duration of the illness claimed to have prevailed on 5 February 2002, although they do refer to a prescription from a Dr Raj and also to a repeat authorisation of certain antibiotic tablets. 6 I have explained to Mr Hassan that the Court does not have the power or authority to grant any form of visa, and that any request for the same needed to be appropriately channelled through the Department of the Minister. 7 Mr Hassan has been prepared to concede in a frank and open manner that as an alternative to the 28 day period he originally requested in the N/M, a period of 15 days would be sufficient for him to make arrangements to depart Australia. On that basis, at my suggestion, and with the commendable co-operation of Mr Cranwell who appears for the Minister, it was agreed that the Minister would not press for an order for costs in relation to the proceedings today, conditional upon Mr Hassan departing Australia within a period of 15 days from the date of this judgment. 8 During the course of today's hearing, Mr Hassan has handed to me for perusal his passport which refers to a circumstance that on 20 April 2000, he received a permit to remain in Australia until 28 days after notification of a primary decision or a decision by the Review Tribunal, or withdrawal of an application in respect of application receipt number RK958700001123. On any view of the significance of that circumstance, as Mr Cranwell points out, that period has expired. 9 In the foregoing circumstances, including the history of the matter set out in my judgment of 5 February 2002, I am unable to see how the Court can provide any legal redress or relief to Mr Hassan of any kind, and certainly, I can see no basis for granting the current N/M. Notwithstanding this position, I have sought to establish some basis for Mr Hassan to be able to leave Australia within a finite period of time, without incurring further legal costs and without being subjected to any adverse finding upon his previous application, except to the extent to which I have formally referred in my judgment of 5 February 2002. 10 On that basis, there being no legal basis available for Mr Hassan for challenge of the original MRT decision, I must dismiss his N/M. I make no order as to the costs of the N/M and formally record that I wish Mr Hassan well in his future, and hope that his departure arrangements will proceed in accordance with the course foreshadowed by him today. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 27 March 2002 Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 27 March 2002

Date of Judgment: 27 March 2002