Arq18 v Minister for Immigration & Anor (No.2)

[2019] FCCA 3443

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARQ18 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 3443

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application in a Case for reinstatement of an Application dismissed for non-appearance of the applicant at its final hearing – 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)

Cases cited:

ARQ18 v Minister for Home Affairs [2019] FCCA 3000

Applicant: ARQ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 400 of 2018

Judgment of: Judge Dowdy

Hearing date: 22 November 2019

Delivered at: Sydney

Delivered on: 27 November 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 OF 22 NOVEMBER 2019 ARE AS FOLLOWS:

1. The Application in a Case filed in this Court on 29 October 2019 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 a Case in the amount of $1,170.

3. No further application by the Applicant is to be accepted for filing by the Registry of the Court without the express leave of a Judge of the Court first having been had and obtained.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 400 of 2018

ARQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. There is before the Court an Application in a Case filed on 29 October 2019 (Application in a Case) by the Applicant seeking reinstatement of his substantive Application which I dismissed on 16 October 2019 in the circumstances set forth in my judgment of that date bearing medium neutral citation [2019] FCCA 3000 (previous judgment), which is to be read as setting out the background to and forming part of the within judgment.

2. The Application in a Case was supported by an affidavit dated 23 October 2019 which deposed as follows:

   1. I am not represented by any solicitor, therefore I was not fully aware of the legal consequence of the court hearings, please consider my application in the light of the above circumstances.

   2. I could not attend the hearing on the designated date because I was very sick and sent the evidence.

Background

1. On 29 October 2019 an officer of the Registry of this Court contacted my Chambers seeking a return date and time for the hearing of the Application in a Case.

2. On 5 November 2019 my Chambers advised that the Application in a Case was to be made returnable on 22 November 2019 at 12:00pm in Court 9.2 at 80 William Street, Sydney for interlocutory hearing.

3. By email also dated 5 November 2019 the parties were advised as follows:

   Dear Parties,

   The Application in a Case for reinstatement has been made returnable for hearing on 22 November 2019 at 12:00pm in Court 9.2, Terrace Tower Group Building, 80 William Street, Sydney, before Judge Dowdy.

   The Applicant should have particular regard to Order 3 of the 16 October 2019 which was earlier advised to you by my email of the same date; attached is a further copy.

   The Minister is directed to file and serve any evidence in opposition to the Application in a Case for reinstatement by Wednesday 20 November 2019 by 4pm.

   Kind regards,

   Deputy Associate to Judge Dowdy

   An Urdu interpreter was arranged to be present at the hearing scheduled for 22 November 2019.

4. By email dated 18 November 2019 to the Registry of this Court the Applicant stated as follows:

   Dear Sir/Madam

   With due respect my file number is SYG400/2018 and my matter is listed in the federal circuit court Sydney on 22-Nov-2019 at 12:00 PM.

   I'm really sick and unable to attend the hearing in the next 4-5 weeks. Therefore it is a humble request to change my hearing date to the end of December or start of January as I'm both mentally and physically not ready to attend the hearing now

   I shall be very thankfull to you

   Regards

   [ARQ18]

5. By later email of 19 November 2019 the solicitor for the First Respondent, the Minister for Immigration (Minister) advised the Registry of this Court and the Applicant that the Minister opposed the request for an adjournment, noting that it was not supported by any medical evidence.

6. My Chambers replied to the Applicant on 19 November 2019, as follows:

   Dear Mr Applicant,

   With respect to the below request for an adjournment of the Application in a Case seeking reinstatement which is set down for hearing on Friday 22 November 2019, no adjournment is granted in the complete absence of any credible medical evidence substantiating that the Applicant is unable to come to Sydney and meaningfully participate in the hearing.

   Further, although there has been no request for a video or telephone appearance from Griffith by you, his Honour would not agree to any such course having regard to the background circumstances leading up to this Friday which it is unnecessary to recapitulate and his view of the importance of the Applicant actually appearing in person in Court.

   Accordingly, the Application in a Case will be heard this Friday 22 November 2019 at 12:00 noon, although obviously it remains the case that the Applicant can renew an application for an adjournment if he does have credible and plausible medical evidence in support of the same.

   Regards,

   Associate to Judge Dowdy

7. I note in particular that notwithstanding that, as recited in [2] of my previous judgment, the Applicant had said he had an appointment with a doctor on 16 October 2019 at 11:00am, there has never been produced by the Applicant any medical evidence in relation to his alleged medical condition.

Conclusion

1. Regrettably the Applicant again did not attend before the Court on 22 November 2019. In the circumstances set out in my previous judgment and the subsequent events I regarded it as entirely reasonable, appropriate and in the interests of justice to make the following orders pursuant to the Federal Circuit Court Rules 2001 (Cth), which I did, as follows:

   1. The Application in a Case filed in this Court on 29 October 2019 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 a Case in the amount of $1,170.

   3. No further application by the Applicant is to be accepted for filing by the Registry of the Court without the express leave of a Judge of the Court first having been had and obtained.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  27 November 2019