Ahmed v Minister for Immigration and Border Protection
[2018] FCA 566
•23 April 2018
FEDERAL COURT OF AUSTRALIA
Ahmed v Minister for Immigration and Border Protection [2018] FCA 566
Appeal from: Application for leave to appeal from:
Ahmed v Minister for Immigration & Anor [2017] FCCA 2677
File number: NSD 1996 of 2017 Judge: ALLSOP CJ Date of judgment: 23 April 2018 Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Federal Court Rules 2011 (Cth), r 35.33
Migration Regulations 1994 (Cth), criterion 3001
Date of hearing: 23 April 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr J McGovern of Clayton Utz ORDERS
NSD 1996 of 2017 BETWEEN: MUNIR AHMED
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
23 APRIL 2018
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed with costs for reason of non-appearance pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.Any application to reinstate the application for leave to appeal be accompanied by:
(a)an affidavit explaining why applicant was unable to attend at the Court at some time during the afternoon of 23 April 2018; and
(b)full written submissions as to why the primary judge and Administrative Appeals Tribunal were each or both in error in their conclusions.
3.Any such application be listed before the Chief Justice.
4.The Court will consider any material filed pursuant to order 2 above in deciding whether any such application will be dealt with on the papers or by way of oral hearing.
5.Any such application be made within 28 days of the dispatch by the Court, by email sent to the email address provided to the Court by the applicant, of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an application for leave to appeal against orders of the Federal Circuit Court made on 1 November 2017 dismissing the applicant’s application. The orders of the Federal Circuit Court arose out of the failure of the applicant to appear on 8 September 2017 at a show cause hearing. On that day, apparently, he came to Court at 80 William Street, but could not locate the courtroom. This was accepted by the primary judge who, nevertheless, refused to set aside the dismissal of the application. The refusal to do so was because of the perceived lack of merit in the application.
The interlocutory nature of the Federal Circuit Court’s orders (by reason of rr 44.12(1)(a) and 44.12(2) of the Federal Circuit Court Rules 2001 (Cth)) means that leave to appeal to this Court is required.
The matter was listed today at not before 2:15pm. Some time prior to 2:15pm, around about the middle of the day, the applicant rang the Minister’s representative and indicated that he was on a train and would not get to the Court until 3:30pm. The matter was stood down to 3:30pm. A later phone call was received by the Registry from the applicant to indicate that he would not arrive at Central Station until 4:41pm. This was also communicated to the Minister’s representative. The matter was stood down to 5:30pm. The applicant was told by phone by the Minister’s representative that the matter would proceed at 5:30pm. In addition, he was informed of this by email from my associate (the applicant having earlier informed the Registry that he had access to his emails on his mobile phone).
A representative of the Minister attended at some time after 5:00pm by arrangement with my associate in case the applicant arrived early, as did a member of the interpreting profession, who is here to interpret for the applicant.
At 5:30pm there was no appearance by the applicant. I asked my associate to call the mobile phone number that the earlier communications were made on. A person identifying himself as Mr Ahmed answered the phone and indicated that he was now at Strathfield and did not know when he would be here. I do not know whether he has gone from Central Railway Station to Strathfield or if he is on the way from wherever he was coming from to Central Railway Station. In any event, the position is unsatisfactory. The matter was set down at not before 2:15pm and Mr Ahmed had ample notice of that.
In these circumstances, I propose to dismiss the application for want of appearance, but in the context of saying something about the application, as the background to orders I will make for any further application to set aside my orders at a later date by reason of the non-appearance of the applicant.
By orders of this Court made on 17 November 2017, the applicant was directed to file and serve written submissions no later than 10 business days before the hearing: that is, on or before 9 April 2018. No such submissions have been filed.
The applicant is a citizen of Pakistan whose last substantive visa ceased on 18 June 2012. On 8 June 2016, he applied for a medical treatment visa. On 10 June 2016, a delegate of the Minister refused to grant the visa. On 22 June 2016, the applicant applied for review to the Administrative Appeals Tribunal and, on 25 November 2016, the Tribunal affirmed the delegate’s decision.
A relevant requirement for the grant of a medical treatment visa was criterion 3001 of the Migration Regulations 1994 (Cth). Criterion 3001 required that the application be filed, that is, the application for the visa be filed, within 28 days after the relevant day as defined in subparagraph (2) of criterion 3001. It is unnecessary to set out the detail of subparagraph (2) otherwise than to say the relevant essence of it required the application to be made within 28 days of the last substantive visa. His last substantive visa ceased, as I have indicated, on 18 June 2012. Thus, Mr Ahmed had to file his application by 16 July 2012. He applied on 8 June 2016.
The consequence of these ineluctable dates was the reason for the delegate’s refusal; that is, that the visa, by the regulations, could not on any basis be granted to him because of the terms of criterion 3001. The Administrative Appeals Tribunal (Migration Refugee Division) affirmed the decision on this basis.
The primary judge viewed this position as fatal to the application. The primary judge also discussed some other matters of procedural fairness raised by the applicant. In particular, it had been asserted that the Tribunal had failed to consider evidence, that the decision was unreasonable and that he was somehow denied procedural fairness.
In the application for leave to appeal, there is an extensive list of seven matters that are raised by the applicant. These have been dealt with clearly and fully in the submissions of the first respondent dated 13 April 2018, which, I assume, have been served upon the applicant. Those submissions deal with the application for leave in a way that prima facie appears appropriate and correct. I have not had the benefit of any argument from the applicant, because he is not here. Central to most of them is the fact of the dates which were the foundation of the conclusions of the delegate, the AAT, and the primary judge that there was no basis whatsoever to the application. I have gone through these matters, but stopped short of making any conclusion about them. I have gone through them because of the orders that I propose to make about how any application to set aside the order that I am about to make should be made.
The matter is so apparently clear, though I would await any further submissions of the applicant, that I do not see why a further listing should be made of the matter prior to an application being filed with an affidavit explaining fully why the applicant was not here today, given the notice of the hearing, and also full written submissions that throw some doubt upon the conclusions of the primary judge. Unless the Court receives submissions that throw relevant doubt on the conclusory relevance of criterion 3001, as well as raise a reasonable basis for accepting that the applicant could not be here at a reasonable time this afternoon, I would not permit further costs to be wasted on behalf of the Minister, the Court, the interpreter or Auscript in dealing with this matter.
For the above reasons, the orders of the Court are:
1.The application for leave to appeal be dismissed with costs for reason of non-appearance pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.Any application to reinstate the application for leave to appeal be accompanied by:
(a)an affidavit explaining why applicant was unable to attend at the Court at some time during the afternoon of 23 April 2018; and
(b)full written submissions as to why the primary judge and Administrative Appeals Tribunal were each or both in error in their conclusions.
3.Any such application be listed before the Chief Justice.
4.The Court will consider any material filed pursuant to order 2 above in deciding whether any such application will be dealt with on the papers or by way of oral hearing.
5.Any such application be made within 28 days of the dispatch by the Court, by email sent to the email address provided to the Court by the applicant, of these orders.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 24 April 2018
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