Ahmed v Minister for Immigration and Border Protection (No 2)
[2018] FCA 1112
•27 July 2018
FEDERAL COURT OF AUSTRALIA
Ahmed v Minister for Immigration and Border Protection (No 2) [2018] FCA 1112
Appeal from: Application for leave to appeal: Ahmed v Minister for Immigration & Anor [2017] FCCA 2677 File number: NSD 1996 of 2017 Judge: ALLSOP CJ Date of judgment: 27 July 2018 Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 9 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:
27 JULY 2018
THE COURT ORDERS THAT:
1.Time to comply with Order 2(b) of the orders made 23 April 2018 be extended to 15 August 2018.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This matter was listed for hearing on 23 April 2018. On that day, the applicant failed to appear. I summarised the surrounding facts in Ahmed v Minister for Immigration and Border Protection [2018] FCA 566:
[3] 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).
[4] 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.
[5] 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.
I made orders that 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). I also ordered that any application to reinstate the application for leave to appeal be accompanied by:
(1)an affidavit explaining why applicant was unable to attend at the Court at some time during the afternoon of 23 April 2018; and
(2)full written submissions as to why the primary judge and Administrative Appeals Tribunal were each or both in error in their conclusions.
Any such application for reinstatement was ordered to 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 the orders of 23 April 2018.
On 22 May 2018, the applicant filed an affidavit explaining why he was unable to attend the scheduled hearing. According to the affidavit, the applicant departed East Maitland train station at approximately 9:38am in the morning of 23 April 2018. The train came to a stop at some point after departure, and passengers were offered a free bus service run by NSW Trains to replace the train. The applicant arrived at the Court at approximately 6pm.
There were no full written submissions as to the why the primary judge and Tribunal was each or were both in error. In his affidavit, the applicant claimed that he was too unwell to prepare proper submissions due to liver cirrhosis and feelings of fatigue and weakness.
The Registry sent an email to the applicant and Minister’s representative. The email confirmed receipt of the affidavit in support of an application for reinstatement, and reminded the parties that pursuant to the orders made 23 April 2018, I would not consider any such application until submissions are received in support of the application for leave to appeal. Noting the matters raised in the affidavit, the applicant was given until 22 June 2018 to file and serve those submissions.
As of today, no submissions have been filed. It has been over three months since the initial orders were made.
The application will be dismissed unless submissions are filed within 3 weeks. That is, by 4pm on 15 August 2018.
The orders of the Court are that:
1.Time to comply with Order 2(b) of the orders made 23 April 2018 be extended to 15 August 2018.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 27 July 2018
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