ALO17 v Minister for Immigration and Border Protection

[2018] FCA 1515

FEDERAL COURT OF AUSTRALIA

ALO17 v Minister for Immigration and Border Protection [2018] FCA 1515

Appeal from:	ALO17 v Minister for Immigration & Anor [2018] FCCA 900
File number(s):	NSD 512 of 2018
Judge(s):	ALLSOP CJ
Date of judgment:	5 October 2018
Legislation:	Federal Court Rules 2011 (Cth), r 36.74(1)
Date of hearing:	5 October 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the Respondents:	Mr J Hutton of Australian Government Solicitor

ORDERS

NSD 512 of 2018

BETWEEN:

ALO17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	5 OCTOBER 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed, pursuant to r 36.74(1) of the Federal Court Rules 2011 (Cth), with costs.

2.Any application to reinstate the application for leave to appeal be accompanied by:

(a)an affidavit setting out full circumstances of why an adjournment was sought for the hearing on 5 October 2018, including medical certificates to the extent that any doctor has been involved; and

(b)full written submissions justifying the appeal, should leave be granted, and why the Tribunal’s decision should be set aside if the matter were to be remitted to the Federal Circuit Court for judicial review.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. In this matter, the applicant seeks leave to appeal from a refusal of a Federal Circuit Court judge to reinstate an application for judicial review. 

2. The applicant has not appeared today.  The matter was set down for hearing some time ago.  At 4:48pm yesterday evening, an email was sent to the solicitor for the Minister and to the New South Wales Appeals Unit requesting the Court to grant an adjournment because the applicant was said to have a fever and taking medicine and that he could not fly. 

3. The applicant is in Queensland but has filed his proceedings in New South Wales.  Ordinarily, such an application would be unremarkable except that, when one reads the reasons of the primary judge, delivered on 23 March 2018, this is a repetition of conduct that occurred on three occasions in the Federal Circuit Court. 

4. On two occasions, the applicant simply did not appear and made an application to reinstate the appeal.  On the second of these occasions, when the application came before the Court, he, again, did not appear.  On the third occasion, he did not appear but was contacted by the Court by telephone. The applicant then sought an adjournment over the telephone, not having intended to appear. The learned primary judge refused this application for reinstatement. 

5. The Minister seeks dismissal of the application for leave to appeal under r 36.74(1) of the Federal Court Rules 2011 (Cth), which is granted, for want of appearance, with costs.

6. As a condition of any application to reinstate the application for leave to appeal, I order that before any listing of this matter is made, the application must be accompanied by an affidavit setting out full circumstances of why an adjournment was sought today, including medical certificates to the extent that any doctor has been involved, as well as full written submissions justifying the appeal, should leave be granted, including full written submissions on why the tribunal’s decision should be set aside if the matter were to be remitted to the Circuit Court for judicial review.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate: 

Dated:       9 October 2018