Atc21 v Minister for Immigration, Citizenship & Multicultural Affairs
[2024] FCA 192
•28 February 2024
FEDERAL COURT OF AUSTRALIA
ATC21 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FCA 192
Appeal from: ATC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 509 File number(s): NSD 748 of 2023 Judgment of: BURLEY J Date of judgment: 28 February 2024 Catchwords: MIGRATION – application for extension of time and leave to appeal from a decision of the Federal Circuit and Family Court of Australia dismissing an application for review of a decision of a Registrar to summarily dismiss an application for review of a decision of the Administrative Appeals Tribunal to affirm a decision of the delegate to refuse to grant the applicant a Protection (Subclass 866) visa. Legislation: Migration Act 1958 (Cth) s 426A(1A)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)
Federal Court Rules 2011 (Cth) rr 35.33, 35.33(1)(a)(i), 35.33(2)
Cases cited: ATC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 509 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 12 Date of hearing: 28 February 2024 Counsel for the Applicant: The applicant did not appear Solicitor for the First Respondent: Ms S Sangha of Mills Oakley ORDERS
NSD 748 of 2023 BETWEEN: ATC21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BURLEY J
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the costs of the application.
3.The Minister supply a copy of the orders made to the applicant forthwith upon receiving the orders made.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)BURLEY J:
The applicant, a citizen of the People’s Republic of China, seeks an extension of time and leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCA) dismissing an application for review of a Registrar’s decision to summarily dismiss an application for review of a decision of the Administrative Appeals Tribunal.
The applicant arrived in Australia in December 2017. He applied for a protection visa based on claims to fear harm in China due to “bad credit debt” and “family trouble”. In April 2019, a delegate of the then Minister for Home Affairs refused to grant a protection visa and the applicant sought merits review at the Tribunal. The applicant supplied an email address and a mobile telephone number for correspondence purposes. He did not appoint a representative. By letter dated 22 January 2021, sent to his nominated email address, the applicant was asked to attend a hearing on 11 February 2021 and invited him to indicate if he was not able to do so. SMS messages were sent to the applicant one week and also one day before the scheduled hearing. Even so, the applicant failed to attend the hearing and no application for adjournment was received.
The Tribunal then proceeded under s 426A(1A)(b) of the Migration Act 1958 (Cth) to dismiss the application. A copy of the Tribunal’s decision was sent to the applicant by email at his nominated address. He was invited to apply within 14 days to have his matter reinstated and informed that unless such application was made, the Tribunal would confirm its decision to dismiss the matter. No application for reinstatement was received and the Tribunal proceeded to confirm its decision.
The applicant then sought judicial review of the decision to dismiss his application. On 3 May 2023, the matter went before a Registrar of the FCFCA who ordered that the application for judicial review be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and that the applicant pay the Minister’s costs fixed in the amount of $4,189.38.
The applicant then sought judicial review of the decision of the Registrar by a judge of the FCFCA. He was unrepresented before the primary judge but appeared and advanced three grounds of review which, paraphrased, were: first, that the Tribunal failed to consider all relevant information before reaching its decision and so did not consider his claims and dismissed the application without giving reasonable grounds; secondly that the Tribunal unduly exercised its discretionary power; and thirdly, that there existed unfairness in deciding his application.
The application before the primary judge was filed late and the primary judge, by consent, extended the time for filing. The primary judge noted that no written or other materials were supplied by the applicant in support of the application and that he did not make any oral submissions in support of it. After summarising the Minister’s submissions, the primary judge considered each ground and determined that the application should be dismissed; ATC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 509 at [34].
The applicant now seeks leave for an extension of time and leave to appeal from the decision of the primary judge. The matter was called for hearing on the nominated day and the applicant failed to appear after the matter was called outside court three times.
The applicant’s failure to appear comes against a background where procedural orders were made by a Registrar of the Court on 2 August 2023 requiring the applicant to file and serve a particularised draft notice of appeal setting out grounds of the appeal within 10 days of that date. That order was not complied with. Furthermore, on 24 October 2023, the Registrar emailed the parties seeking their availability for hearing. A response was received from those representing the Minister but no response was received from the applicant. On 14 December 2023, the Registry emailed the parties confirming that the matter had been set down for hearing today. No response was received from the applicant.
The Minister has tendered as Exhibit A a bundle of correspondence sent by email to the applicant. In that correspondence, on several occasions, the applicant is reminded of the hearing date today. In the most recent of those, dated 27 February 2024, a copy of the Minister’s bundle of authorities was included. The applicant was reminded of the hearing date today and a notation was made that if the applicant failed to appear, the Minister may – without further notice – seek orders that the application be dismissed with costs. That application was made orally in court upon the applicant failing to appear.
Rule 35.33 of the Federal Court Rules 2011 (Cth) (FCR) provides as follows:
(1)If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:
(a)if the absent party is the applicant:
(i)the application be dismissed; or
(ii)the application be adjourned; or
(iii)the hearing proceed only if specified steps are taken; or
(b)if the absent party is the respondent:
(i)the hearing proceed generally or in relation to a particular aspect of the application; or
(ii)the hearing be adjourned; or
(iii)the hearing proceed only if specified steps are taken.
(2)If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:
(a)setting aside or varying the order; and
(b) for the further conduct of the proceeding.
This is a case in which I am satisfied that the application brought by the applicant should be dismissed. The applicant has demonstrated a serial disregard for the timetable set by tribunals and this Court, and as a result it is appropriate that the application be dismissed in accordance with FCR 35.33(1)(a)(i).
I note that FCR 35.33(2) provides that a party who was absent may apply to the Court for an order setting aside or varying the order. That provides the applicant with an opportunity, should he wish to do so, to come before the court and explain his absence and seek leave to have the matter reagitated. However, in the circumstances, I am satisfied that the appropriate course now is to dismiss the matter by reason of non-appearance. Accordingly, I order that:
(1)the application be dismissed.
(2)the applicant pay the costs of the application; and
(3)the Minister supply a copy of the orders made to the applicant forthwith upon receiving the orders made.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate:
Dated: 6 March 2024
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