BALI v Minister for Immigration

[2020] FCCA 2275

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2275

Catchwords:
MIGRATION – No appearance by applicant at final hearing of originating application – no good reason provided for non-appearance – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c).

Applicant: MUKESH BALI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 123 of 2020

Judgment of: Judge Egan

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Brisbane

Delivered on: 7 August 2020

REPRESENTATION

Applicant: No appearance

Solicitors for the First Respondent: Ms Allen of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The application for review filed on 5 February 2019 be dismissed pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the absence of the applicant at the hearing.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 123 of 2020

MUKESH BALI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing on a final basis at a time when one Vinh Dam from Dam Lawyers was on the record as the solicitor in the firm of lawyers then on the court record as appearing on behalf of the applicant. 

2. On 5 August 2020, Mr Dam filed with the court a notice of withdrawal of lawyer. By paragraph 3(a) of such notice of withdrawal, Mr Dam confirmed that he had served a notice of intention to withdraw as a lawyer, upon the applicant, by “direct email”. 

3. Attached to the notice of withdrawal as a lawyer was a notice of intention to withdraw as a lawyer. Paragraph 6 of that notice gave notice to the applicant that the hearing before the Court was listed for today at 9.45 am. 

4. Mr Dam was requested to appear by telephone this morning before the court for the purpose of assisting the court in identifying the email address to which he had sent the notice of intention to withdraw as a lawyer to the applicant. Mr Dam confirmed the email address to which he had sent such notice.

5. That email address had been recorded as being the applicant’s relevant email address for the purpose of the review hearing before the Administrative Appeals Tribunal (‘the Tribunal’). [1]

   [1]        Court Book (CB) pages 143, 144, 145, 147 and 148.

6. The applicant engaged the services of Dam Lawyers after a request in relation to the Tribunal review hearing had been sent to the applicant on 9 December 2019. 

7. In all of the circumstances, the Court accepts that the relevant contact address for the applicant up until the present time was the email address nominated by Mr Dam.mailto: In addition to the notice of intention to withdraw as a lawyer being sent to the applicant, the lawyers for the first respondent, by Ms Allen, helpfully sent an email to the applicant on 6 August 2020. 

8. Such email notified the applicant that the hearing was listed for 7 August 2020 at 9.45 am. Relevantly, she further advised the applicant that should he not appear at the hearing on that date, an application would be made for dismissal of the proceeding with costs. That email is marked Exhibit 2. It should be noted that such email was sent to the same email address to which correspondence was directed to the applicant by his former lawyer.

9. The applicant has not appeared by telephone today despite the means for doing so having been in the email sent to the applicant by Ms Allen. The Court is satisfied that the applicant had been given notice of today’s hearing. In such circumstances, the Court also notes that no reasonable explanation has been given, by or on behalf of the applicant, for the applicant’s non‑appearance by telephone at today’s hearing. Ms Allen has accordingly made application for dismissal of the proceedings pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

10. The court accepts the submission made on behalf of the first respondent that no good reason has been given for the non-appearance of the applicant.

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

Associate:

Date: 18 August 2020