Abs16 v Minister for Immigration and Border Protection
[2018] FCA 1101
•18 July 2018
FEDERAL COURT OF AUSTRALIA
ABS16 v Minister for Immigration and Border Protection [2018] FCA 1101
Appeal from: ABS16 v Minister for Immigration [2017] FCCA 2722 File number(s): NSD 1992 of 2017 Judge(s): FARRELL J Date of judgment: 18 July 2018 Catchwords: MIGRATION – Application to dismiss an appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) – applicant failed to attend two hearing dates without adequate explanation – application granted Legislation: Migration Act 1958 (Cth) s 65
Federal Court Rules 2011 (Cth) r 36.75
Cases cited: ABS16 v Minister for Immigration [2017] FCCA 2722 Date of hearing: 18 July 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1992 of 2017 BETWEEN: ABS16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
18 JULY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).
2.The appellant pay the Minister’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J
The appellant, a citizen of Pakistan, has filed a notice of appeal from a decision of the Federal Circuit Court of Australia (FCCA) delivered on 1 November 2017. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant ABS16 a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth): see ABS16 v Minister for Immigration [2017] FCCA 2722.
On 19 April 2018, the Registry of the Federal Court advised the parties that this matter had been allocated to my docket and that the Court proposed to list the matter for hearing at 2.15 pm on 12 July 2018. On 23 April 2018, the appellant advised the Court by email that that date was “suitable”. On 7 May 2018, the Court advised the parties by email that the hearing had been listed for 12 July 2018 at 2.15 pm.
The appellant did not file any submissions in accordance with orders made by Registrar McCormick on 17 November 2017.
When the matter came on for hearing at 2.15 pm on 12 July 2018, the appellant did not appear. Ms Rayment, the Minister’s legal representative, tendered a copy of email correspondence between the appellant and the Minister’s lawyers, Sparke Helmore. On 11 July 2018 at 4.10 pm, the appellant sent an email saying:
I’m sick 12 July I am not coming to hearing federal courts if possible change my hearing date [name of appellant] 11 July 2018
Regards [name of appellant]
Ms Rayment advised the appellant by email dated 11 July 2018 at 4.26 pm that:
If you wish to make an application for an adjournment you should do so without delay and provide medical evidence to support your claimed inability to attend the hearing. Unless and until an adjournment has been granted by her Honour your matter remains listed for hearing tomorrow.
If you do not attend tomorrow, the Respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.
Ms Rayment made an application that the appeal be dismissed under r 36.75 of the Federal Court Rules 2011 (Cth) which relevantly provides as follows:
36.75 Absence of party
(1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a) if the absent party is the appellant:
(i) the appeal be dismissed; or
(ii) the hearing be adjourned; or
(iii) the hearing proceed only if specified steps are taken; or
(b) …
(2)If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the hearing.
The Court determined to adjourn the hearing to 2.15 pm today, 18 July 2018 and caused an email to be sent to the parties at 4.15 pm on 12 July 2018 in the following terms (emphasis in original):
This matter was set down for hearing at 2.15 pm today. The appellant did not appear. The Court was advised of an email communication sent by the appellant to the Minister’s legal representative yesterday indicating that he was sick and may not attend. That is not an adequate reason for the failure to attend today.
The Court treated the email to the Minister as an application to adjourn the hearing. The hearing has been adjourned until 2.15 pm on Wednesday, 18 July 2018.
Her Honour has required me to advise the appellant that:
ŸIf he seeks further adjournment of this matter, he must apply to the Court. Any application must be accompanied by evidence supporting his reason for the adjournment. If the adjournment is sought on the basis of illness, a medical certificate must be provided. A medical certificate will not be acceptable unless it states why the appellant is unfit to attend and participate in the proceedings. A certificate which states that he is unfit to attend work will be insufficient.
ŸIf the appellant fails to attend the hearing at 2.15 pm on Wednesday, 18 July 2018 without seeking an adjournment or without an excuse acceptable to the Court, the Court will entertain an application from the Minister to dismiss the proceedings.
By an email date stamped as sent on 17 July 2018 at 8.27 pm, the appellant advised the Court’s Registry (but not the Minister) as follows (as written):
My name is [name of appellant] my English is not well my hearing was 12july 2018 I was sick and out of country and tomorrow my hearing date I cannot attend because this time my bridging visa B is expired please can you help me and order to immigration extend my bridging visa B I want attend hearing court ican not explain good please me Regards [name of appellant]17 July 2018 Date of birth [date redacted]
By an email dated 18 July 2018 at 11.16 am, the Court’s Registry forwarded a copy of the appellant’s email and advised:
The email below appears to be an application for an adjournment on the basis that the appellant is not in Australia and his bridging visa has expired.
Please tell the Court whether the appellant is in Australia.
The hearing will proceed at 2:15 pm today. If the appellant is unable to attend in person, he may attend by telephone if he provides a number at which he can be reached. An interpreter will be in the Court today.
At the hearing, the Court will do one of the following, depending on the circumstances:
ŸEntertain an application to adjourn the hearing of the appeal;
ŸHear the appeal; or
ŸEntertain an application by the Minister to dismiss the appeal.
The Court strongly encourages the appellant to attend today's hearing (either in person or by phone). The Court notes that the appellant's email was sent from an iPhone.
Please advise as soon as possible.
A lawyer employed by Spark Helmore replied to all at 11.46 am in the following terms:
Thank you for bringing the appellant's email to our attention.
We can advise that we have received confirmation that the appellant has departed Australia.
We also confirm that in the event that the appellant fails to attend today's hearing by telephone, the first respondent will make an oral application for the dismissal of the matter and seek his costs.
By the time the matter came on for hearing at the appointed time, the Court had not received a response from the appellant. Ms Rayment renewed the application under r 36.75. She tendered the affidavit of Monica Kate Forrester Perotti affirmed today. It provides evidence that the appellant departed Australia on 2 July 2018 which indicates that the appellant was absent from Australia both on 12 July 2018 and today. Ms Rayment submitted, and I accept, that as the appellant is no longer in the country, he is not eligible to be granted the protection visa which is the subject of the decision of the Tribunal of which the appellant sought judicial review. The appellant may have difficulty returning to Australia. The appeal therefore lacks utility.
In those circumstances I will order that the appeal be dismissed pursuant to r 36.75(1)(a)(i) and that the appellant pay the Minister’s costs as agreed or taxed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate
Dated: 2 August 2018
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