Alam v Minster for Home Affairs

[2018] FCCA 2477

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAM v MINSTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2477

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the applicant – appropriate matter for the Court to exercise powers under r.13.03C(1)(c) – amended application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c), 16.05.

Migration Act 1958 (Cth), ss.347, 476.
Migration Regulations 1994 (Cth), r.4.01.

Applicant: RASEL ALAM

First Respondent: MINSTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 430 of 2018

Judgment of: Judge Street

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Sydney

Delivered on: 18 June 2018

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The amended application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 430 of 2018

RASEL ALAM

Applicant

And

MINSTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 January 2018 holding that the Tribunal did not have jurisdiction in circumstances where the application for review was lodged on 18 December 2017 and pursuant to s 347(1)(b) of the Act and r 4.01 of the Migration Regulations 1994 (Cth) (“the Regulations”). The application had to be made within 21 days after the applicant was notified of the decision.

2. The Tribunal found the applicant had been notified of the decision on 24 November 2017. The Tribunal rejected the applicant’s submissions to the contrary and found that the prescribed period for the application for review ended on 15 December 2017 and found that it did not have jurisdiction to review the matter.

Before this Court

1. These proceedings were commenced on 19 February 2018. On 12 March 2018, an order was made by the Registrar fixing the matter for hearing today and giving the applicant an opportunity to file amended application, affidavit evidence and submissions. The applicant has, in fact, filed a proposed amended application, affidavit evidence and submissions.

Application for dismissal under r. 13.03C(1)(c) of the Rules

1. The matter has been called and the applicant has failed to appear. The Court has endeavoured to contact the applicant both by the telephone number identified on the applicant’s application and amended application as well as a different telephone number provided by the applicant on submissions. No response has been received in relation to those endeavours.

2. The applicant sent a communication to the Court at 8:56am today seeking an adjournment on the basis of being sick and having seen a medical officer the day before and attaching a certificate from that medical officer. The covering email by the applicant asserted that he had serious diarrhoea and strong vertigo. The medical certificate did not identify any condition from which the applicant was suffering. The medical certificate merely indicated the applicant was unfit for work, school, university or TAFE from 18 June 2018 to 19 June 2018 due to a medical condition. The medical certificate and the applicant’s email were insufficient on their face to warrant an adjournment of the proceedings that had been fixed for hearing in circumstances where the applicant had obviously been able to attend upon a doctor the day before. The nature of the applicant’s medical condition was not identified at all by the doctor, or why the applicant would not have been able to attend Court, or why the applicant could not have participated in a hearing by telephone.

3. In response to that request, the first respondent identified that it proposed to oppose the adjournment on the grounds of the material provided, and an email was sent to the applicant at the applicant’s email address in that regard identifying that the matter was still listed for hearing today. The Court also sent an email identifying to the applicant that the matter remains listed for hearing at 11:00am today and expressly said that:

   If you provide a mobile number the Court will permit you to appear by telephone.

4. That email was sent at 9:31am this morning. It is now past 11:15am, and no no mobile number was provided by the applicant. Accordingly, the Court was required to endeavour to contact the applicant on the telephone numbers provided and would have considered making an order under Part 5, Division 5 of the Act if the applicant had provided a satisfactory explanation as to why he was unable to attend Court in person. It is clear from the correspondence that the applicant was aware of the hearing date.

5. The applicant’s failure to provide a response or to provide a telephone number appears to reflect a deliberate decision not to participate in the hearing. A deliberate decision not to participate in the hearing is relevant in relation to any application made under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). That is a provision to permit re-agitation of an order made in the absence of a party in circumstances where a satisfactory explanation about the failure to attend being other than deliberate is advanced. However, it is unnecessary for the Court determine that issue on this occasion.

6. On the material before the Court, the Court is satisfied that the applicant was aware of the hearing. The Court does not regard the medical certificate provided to support that the applicant would have been unable to attend today, and the applicant’s failure to provide a mobile number to permit the Court to consider whether or not any order should be made under Part 5, Division 5 of the Act is consistent with the applicant being aware of the hearing date.

7. The first respondent has asked for the application to be dismissed under r 13.03C(1)(c) of the Rules. The medical certificate did not identify a proper basis upon which the applicant would be unable to attend Court or explain why the applicant would not be able to participate in a telephone hearing. In the circumstances, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) of the Rules.

Conclusion

1. Accordingly, the amended application is dismissed under r 13.03C(1)(c) of the Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 September 2018