Arq18 v Minister for Home Affairs

[2019] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3000

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – dismissal for absence of appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Applicant: ARQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 400 of 2018

Judgment of: Judge Dowdy

Hearing date: 16 October 2019

Delivered at: Sydney

Delivered on: 16 October 2019

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Mr J. Tsaousidis

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 15 February 2018 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $3,800.

3. In the event that the Applicant files an Application in a Case to set aside the dismissal today of his Application, he is to be prepared, on the first return date of his said application:

   (a)to run his application to set aside the dismissal; and

   (b)to run his substantive Application for relief with respect to the Tribunal decision below.

4. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 400 of 2018

ARQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. This matter was set down for hearing today on its first return date, being 18 May 2018, when the Applicant said he had no problem with that date. The matter has been called three times outside the Court between the hours of 10:15am and nearly 11:10am, and the Applicant has not appeared.

2. On 2 October 2019 the Applicant sent an email to the solicitors for the Minister dated 2 October 2019, which said verbatim as follows:

   Dear Sir/Madam

   With due respect it is stated that I [omitted] am invited for a hearing in the Federal circuit court of Australia Sydney NSW on 16-OCT-2019 at 10:15 AM.

   As my home town is [omitted] and I have a medical condition due to which I'm unable to drive such a long distance from Griffith To Sydney which is around 6-7 hours. Also I have an appointment with my Doctor on the same day which is 16-OCT-2019 at 11:00 AM. I have attached a copy of my appointment letter. And I am unable to attend the hearing.

   Therefore it is a humble request to change my hearing date. I shall be very thankful to you.

   Thanks

   [ARQ18] 

3. On 3 October 2019 at 10:07am the Minister’s lawyers responded confirming that the Minister opposed the request for an adjournment, and stating as follows:

   Dear Associate and sir  

   Whether an adjournment is granted is a matter for the Court. I have copied the Court into this email so they are aware of the request.

   I confirm that the Minister opposes the request for the adjournment. This is on the basis that, beyond a screenshot of a Doctor’s appointment, no evidence has been provided as to the nature of the medical condition, its seriousness or how it limits the applicant’s ability to travel. 

   Regards 

   John Tsaousidis

   Solicitor

   (emphasis added)

4. On 8 October 2019 at 12:54pm an email was sent from my Chambers to the Applicant, which stated as follows:

   Dear Mr Applicant, 

   With reference to your below email I advise that his Honour is not prepared to grant an adjournment of the final hearing date, to which you agreed as long ago as 18 May 2018, on the basis as sought in your said email.

   Accordingly, you should be in attendance at Court for the final hearing on 16 October 2019 at 10:15am in Court 9.2, 80 William St, Sydney.

   Regards,

   Associate to Judge Dowdy

5. Also on 8 October 2019 the Minister’s lawyers sent by email to the Applicant at his nominated email address the First Respondent’s Outline of Written Submissions and list of authorities and advised that if the Applicant did not attend, the Minister may seek to have the matter dismissed for non-appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

6. On 11 October 2019 at 1:22am the Applicant sent the following email to my Chambers:

   Dear Sir/Madam

   With due respect I have received your email which says that my request to change the hearing date is rejected by Honourable Judge and I am still invited to attend the hearing But I am unable to attend the hearing on this day

   Therefore I'm writing this email to inform you that I'll be not able to attend the hearing

   Thanks

   Kind Regards

   [ARQ18]

7. My Chambers responded on 14 October 2019 at 9:22am by email, which stated as follows:

   Dear Mr Applicant,

   You seem to misunderstand the position.  No one is “inviting” you to the hearing tomorrow, such that you are entitled to decline the invitation.

   Rather, this is your case, commenced by you on 15 February 2018 and in which you are the moving party. Accordingly, it is your obligation to appear on Wednesday to propound your case and present your arguments in seeking judicial review of the decision of the Administrative Appeals Tribunal dated 31 January 2018. In particular, you are obliged by s.37N of the Federal Court of Australia Act 1976 (Cth) to conduct the proceeding in accordance with the overarching purpose expressed in s.37M, namely to facilitate the resolution of the proceeding “as quickly, inexpensively and efficiently as possible”.

   You should understand that if you do not appear on Wednesday it is likely that the Minister will seek that your Application be dismissed for absence of appearance.

   Regards,

   Associate to Judge Dowdy

8. The correspondence speaks for itself. The short point is that the Applicant as long ago as 18 May 2018 accepted the date of his final hearing of his application as being today. He has not given any proper reason in aid of an adjournment. He has not provided any medical certificate or let alone a medical certificate stating his medical problem or problems and conditions and why it would prevent him from appearing today and meaningfully participating in the hearing and putting his case. The mere fact that he made an appointment to see a doctor provides nothing relevant to an adjournment application.

9. In these circumstances, the Minister, not unreasonably, asked for dismissal for non-appearance and seeks scale costs of $3,800 and it is eminently reasonable that orders to that effect be made.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  21 October 2019