Azb15 v Minister for Immigration and Border Protection

[2018] FCA 1347

FEDERAL COURT OF AUSTRALIA

AZB15 v Minister for Immigration and Border Protection [2018] FCA 1347

Appeal from:

Application for extension of time and leave to appeal: AZB15 v Minister for Immigration and Border Protection [2018] FCCA 1076

File number:

NSD 521 of 2018

Judge:

PERRY J

Date of judgment:

31 August 2018

Catchwords:

MIGRATION –application for extension of time and leave to appeal dismissed under subs 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) by reason of applicant’s failure to appear

Legislation:

Migration Act 1958 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Federal Court Rules 2011 (Cth)

Date of hearing:

28 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

The Applicant did not appear

Solicitor for the Respondents:

Mr L Dennis of Minter Ellison

ORDERS

NSD 521 of 2018

BETWEEN:

AZB15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	28 AUGUST 2018

THE COURT ORDERS THAT:

1.The application is dismissed under subs 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.The applicant is to pay the first respondent’s cost as agreed or assessed.

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

REASONS FOR JUDGMENT
(Revised From Transcript)

PERRY J:

1.               INTRODUCTION

1. The applicant is a citizen of India. He sought an extension of time under subs 477(2) of the Migration Act 1958 (Cth) (the Act) within which to seek judicial review in the Federal Circuit Court of Australia (FCC) of a decision made by the then Refugee Review Tribunal, the predecessor of the second respondent (the Tribunal).  By its decision, the Tribunal had affirmed a decision by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant him a Protection (Class XA) visa (protection visa). 

2. The application for an extension of time was dismissed by the FCC pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) by reason of the failure by the applicant to appear at the first court date on 11 December 2017. The applicant applied under rule 16.05 of the FCC Rules for reinstatement of his proceeding. That application was refused by the primary judge on 9 March 2018.

3. By an application dated 6 April 2018 filed in this Court, the applicant seeks an extension of time within which to seek leave to appeal from the FCC orders dismissing his reinstatement application.  The draft notice of appeal identifies the following grounds:

   1.Hon Judge Cameron failed hold that Administrative Appeals Tribunal made jurisdictional erroe of law when it took into account irrelevant consideration and misconduct the facts.

   2.AAT and Immigration Department did not properly access my case.

   3.S. 36(2)(A) he satisfy the criteria but AAT did not consider his claim.

   4.AAT did not give him fair chance.

   5.AAT only view that he did not come for interview so he is not eligible for protection visa.

   (errors in the original)

4. No address for service has been filed by any legal representative for the applicant and as such, it appears that he has not engaged legal representation.  The appellant did not file any written submissions in advance of the appeal in accordance with the orders of the Registrar made on 3 May 2018.

   2.               THE APPLICATION TO DISMISS THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO SEEK LEAVE TO APPEAL FOR NON-ATTENDANCE AT THE HEARING

5. The application for an extension of time and leave to appeal was called on for hearing on 28 August 2018 at approximately 2:20 pm.  The applicant did not appear.  The matter was called outside the courtroom three times and there was still no appearance for the applicant.  In the circumstances, I adjourned the Court briefly in order to allow the Minister’s representative to endeavour to contact the applicant on the mobile phone number which the applicant had provided in his affidavit in support of the present applications for an extension of time and leave to appeal.  The Minister’s representative endeavoured to contact the applicant without success, with the two calls made going to voicemail.  The Minister’s representative also left a message on the voicemail message bank requesting the applicant to telephone him immediately upon receiving the voicemail.

6. In the circumstances, when the hearing resumed at approximately 2:43 pm the Minister applied for the application to be dismissed under subs 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the FCA) for non-appearance and made brief oral submissions in support of that application.  The Minister also tendered correspondence in support of that application to which I refer later in my reasons.

7. Section 25 of the FCA provides that:

   (2B)  A single Judge (sitting in Chambers or in open court) or a Full Court may:

   …

   (bb)      make an order that an appeal to the Court be dismissed for:

   ….

   (ii)       failure of the appellant to attend a hearing relating to the appeal; or

   …

8. It is clear that while subs 25(2B)(bb) refers in its terms only to the dismissal of an appeal, that section also applies to an application for an extension of time within which to seek leave to appeal by virtue of subs 25(2) and 25(2A) of the FCA.

   3.               REASONS FOR DISMISSING THE APPLICATION BY REASON OF THE APPLICANT’S FAILURE TO ATTEND THE HEARING

9. I agree that the application should be dismissed for non-attendance pursuant to these provisions by reason of the applicant’s failure to attend when the applications for an extension of time and leave to appeal were called on today.  In reaching this view, I have had regard to a number of factors in addition to the applicant’s failure to attend.

   (1)The appellant did not file any written submissions in support of his applications despite orders made by the Registrar on 3 May 2018 providing that the applicant was to file and serve a written outline of submissions in support of the applications no later than ten business days before the hearing date. 

   (2)The application book was served by the Minister upon the applicant by post under cover of a letter dated 9 May 2018 sent to the address identified in the applicant’s application for an extension of time and leave to appeal.

   (3)On 10 July 2018 the Registry sent an email to the email address provided by the applicant on his application and to the Minister’s representatives advising that the matter was listed before me at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney on Tuesday, 28 August 2018 at 2:15pm.  The email further advised that:

   The courtroom allocated to this matter will be displayed on the notice board at the Federal Court on the day of the hearing or is available on the Daily Court Lists from late in the afternoon the day before the hearing.

   Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.

   The email also asked the applicant to refer to the file number at the top of the letter if he needed to contact the Court about the matter and provided contact details, including a telephone number for the National Operations Team of the Federal Court, at the base of the letter.

   (4)On 27 July 2018, the Registry wrote again to the applicant using the email provided by him on his application, copied to the Minister’s legal representatives.  In that email, Registry advised that the matter was listed for hearing on 28 August 2018 at 2:15 pm and attached orders providing for the applicant to file further evidence in support of his application for the extension of time, as well as explaining the reasons why that order was made.

   (5) On 13 July 2018, the Minister’s representatives wrote by email to the applicant attaching a letter bearing the same date and a sealed copy of the orders made by the Registrar on 3 May 2018.  A copy of the letter was also apparently sent by post to the address provided by the applicant on his application for an extension of time and leave to appeal.  The letter also advised as to the listing arrangements in accordance with those earlier communicated by the Registry and stated that:

   If you do not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions of the Federal Court Rules 2011 (Cth).

   I note that the letter also set out contact details for a person at Minter Ellison, the solicitors for the Minister, who the applicant could presumably contact in relation to the matter.

   (6)On 21 August 2018, the Minister’s representatives wrote again by email to the applicant to the email address he provided attaching a letter which enclosed by way of service the Minister’s outline of submissions and list of authorities.  The letter noted again the listing details for today and repeated that if the applicant did not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under the Federal Court Rules 2011 (Cth) (the FCA Rules).  A copy of that letter was also apparently sent by post to the address provided by the applicant on his application for an extension of time and leave to appeal.  

   (7)As I have earlier noted, the Court Officer called the matter outside the courtroom three times this afternoon with no appearance by the applicant and attempts to contact him by telephone when the matter was stood down briefly have been unsuccessful.  Nor has there been any response to the voicemail left by the Minister’s legal representative.

   (8)I further note that the proposed grounds of appeal do not indicate that any appeal would enjoy any reasonable prospects of success, even if the applicant were able to overcome the obstacles of requiring an extension of time and leave to appeal. The proposed Grounds 1, 2, 3 and 4 are unintelligible, unparticularised, and fail to specify the nature of the errors allegedly committed by the primary judge. Nor were those grounds elaborated upon in written submissions. With respect to proposed Ground 5, it is apparent that, by reason of his failure to attend the interview before the Tribunal, it was entitled under s 426A of the Act to dismiss his application without taking any further action to enable the applicant to appear before it. The Tribunal in fact followed that course and, based upon its assessment of the evidence, found that it was not satisfied that the applicant met the criteria for the grant of a protection visa. The sixth proposed ground effectively asked this Court to consider whether the applicant satisfies the criteria for a protection visa. However, as the primary judge held in his reasons at [9] and [29], it is not open to the Federal Circuit Court, or this Court, to consider the merits of his visa application.

10. Finally, I note that in acceding to the Minister’s application, I have had regard to the entitlement of the appellant to apply under rule 36.75(2) of the FCA Rules to set aside the orders made today. Whether or not any such application succeeded would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the applicant’s failure to attend the hearing today and the strength of his case on the application if the order dismissing his application for an extension of time and leave to appeal were to be set aside.

11. For these reasons, the application should be dismissed under subs 25(2B)(bb)(ii) of the FCA with costs as agreed or assessed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Associate:

Dated:       28 August 2018