BHP17 v Minister for Immigration

[2020] FCCA 1204

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHP17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1204

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – no appearance by the applicant – request for an adjournment until after pandemic – application dismissed for non-appearance.

Legislation:

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

Migration Act 1958 (Cth), s.476

Applicant: BHP17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3037 of 2019

Judgment of: Judge Street

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Sydney

Delivered on: 15 May 2020

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Ms S Lloyd via Microsoft Teams
HWL Ebsworth

ORDERS

1. The application is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Date of order: 15 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3037 of 2019

BHP17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings in respect of which the applicant is seeking a Constitutional writ under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 20 September 2019 affirming the decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise visa.

2. These proceedings were fixed for hearing as a result of orders made by a Registrar of the Court on 12 December 2019. A further order was made by this Court on 23 April 2020 identifying that the matter would proceed by way of video link. This Court then made orders on 30 April 2020 varying the hearing date to today’s date. The applicant was sent the orders identifying the hearing date as today’s date.

3. The applicant was clearly aware of the hearing date. On 6 May 2020, the first respondent’s solicitor sent the applicant a notification by email confirming the hearing date for today. The applicant responded by email, identifying that the applicant was unable to come to the video conference, did not have a proper computer to use Microsoft Teams and was not interested to use a public café computer. It is clear from the fact that the applicant sent and received the email that the applicant has access to a computer device and could attend the hearing via Microsoft Teams in those circumstances.

4. The applicant otherwise referred to stress in his life and asked for the matter to await the conclusion of the current pandemic. It is not appropriate for proceedings that are able to be conducted to be adjourned because there is a pandemic. In circumstances where parties can safely appear remotely, the Court does not accept, by reason of the email that was sent by the applicant, that the applicant does not have access to a computer device or that an adjournment is necessary.

5. That email was forwarded to the Court on 12 May 2020. The Court responded on 12 May 2020 to the applicant’s email, identifying that the Court did not accept, given the applicant’s email, that the applicant cannot attend by Microsoft Teams. The Court identified that the matter remains fixed for hearing today. The Court added to the communication that “Any further adjournment request must be made by an application in a case supported by affidavit. If the applicant fails to appear, the matter may be dismissed with costs.”

6. The matter has been called and the applicant has not appeared.

7. The first respondent suggests that the matter be adjourned until after the pandemic. That is not an appropriate or proper course to take. It is not the case that this Court will adjourn matters that are fixed for hearing simply because there is a pandemic in circumstances where parties can safely appear by video and/or by audio link.

8. The first respondent has suggested that there is a difficulty for the applicant in terms of access to a computer. There is no evidence to support that proposition. The Court conveyed to the applicant, clearly, its concern that being able to communicate by email means that the applicant has access to a computer device. No application in a case or affidavit has been filed explaining why the applicant is unable to appear.

9. The Court is not persuaded that it is an appropriate in these circumstance to grant an adjournment. The Court has limited time in which to hear matters and, where a matter is fixed for a final hearing, other parties that might have had cases heard obviously cannot use that time. Merely because the applicant has sent a communication identifying a reluctance to attend because of the pandemic is not a proper basis for an adjournment where the applicant can safely appear remotely by video and/or audio link. The suggestion by the first respondent that the matter be adjourned until the conclusion of the pandemic is equally inappropriate. No proper basis for an adjournment has been made out. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

10. In circumstances where the applicant has failed to appear, the Court is satisfied this is an appropriate matter in which to exercise the Court’s discretion under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

11. The Court is not satisfied that it is an appropriate matter to order costs in circumstances where the first respondent advanced an adjournment that was not granted and where the first respondent did not address the issues arising from the sending of the email and ability to appear remotely in relation to whether an adjournment should have been advanced. The proposed period of adjournment was also not appropriate where remote video and/or audio hearings can and are regularly held without any attendant risk. In those circumstances, the Court declines to make any order as to costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 15 July 2020