BJV16 v Minister for Immigration

[2018] FCCA 491

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 491

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – broad assertions of legal error – application set down for show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

PRACTICE & PROCEDURE – Non-appearance of the applicant at the show cause hearing – application for dismissal pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – application allowed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: BJV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1447 of 2016

Judgment of: Judge Nicholls

Hearing date: 14 February 2018

Date of Last Submission: 14 February 2018

Delivered at: Sydney

Delivered on: 14 February 2018

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Ms C Saunders of DLA Piper Australia

ORDERS

1. The application made on 7 June 2016 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1447 of 2016

BJV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 7 June 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 5 May 2016, affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. Orders were made by a Registrar of the Court for the conduct of this case on 28 July 2016 (by consent) and on 8 December 2016. The applicant was given the opportunity to file any amended application, evidence by way of affidavit and written submissions. The applicant did not file any further documents and the matter was set down for a show cause hearing before me today. 

3. I am satisfied on the evidence that the applicant had reasonable notice of the Court event today.  In particular, I take into account the affidavit of Xuhan Alta Shi, Legal Assistant, made on 12 February 2018 and handed up in Court today. The applicant was put on notice that any failure to attend would lead to the Minister making an application to have the matter dismissed (see annexures “A” and “B” to the affidavit of Xuhan Shi).

4. I also note the Minister’s exhibit 1 (“RE1”) which is a copy of an email communication from the applicant to the Court’s registry claiming that he was suffering from “vertigo”, and that this caused him “dizziness, nausea and vomiting”, that a doctor had told him it will take two to three months “to get back to normal”, and has “recommended” that he “rest”.  He therefore requested that the Court “reschedule” his hearing “to a future date”. Of relevance from this communication from the applicant is that he confirmed that he knew of the hearing today, 14 February 2018. 

5. The email communication from the applicant cannot be said to be a formal application for an adjournment.  He has not filed an Application in a Case, nor any affidavit in support. I accept that the applicant is unrepresented, and is not a lawyer in this country, and that in these circumstances, the email communication may constitute a request for an adjournment.  The difficulty for the applicant is that he has not provided any medical evidence to support the assertions that he makes in the email communication, noting, of course, that the email is not evidence from the applicant, it is just a statement by the applicant. 

6. The document attached to the email is a doctor’s account for fees for the applicant’s surgery consultation on 4 January 2018.  It says nothing about any medical condition of the applicant. Nor, importantly, does it say anything about the applicant’s capacity to attend the hearing today. This includes whether any such attendance could have been facilitated, for example, by telephone, as is sometimes the case with applicants who are unable to physically attend Court. 

7. Even if the applicant’s email were to be taken as an application for an adjournment, I am not satisfied on the evidence that the adjournment should be granted.  The applicant was on notice subsequent to his email communication, by communication from the Court’s registry, that the matter remained set down for hearing (given what is also part of the Minister’s exhibit 1). The applicant would also have been on notice given the subsequent communication from the Minister, that the matter was listed for hearing today, and to the extent that the applicant had sought an adjournment, such an adjournment had not been granted (see annexures “A” and “B” to the affidavit of Xuhan Shi).

8. I should also note that the grounds of the application to the Court contain what can only be described as the most general of assertions of legal error. They lack any particularity whatsoever. Further, in their terms, they cannot be properly understood as any proper assertion of jurisdictional error on the part of the Tribunal. 

9. The applicant made his application to the Court in the most general of terms. Since 7 June 2016 (when he filed his application with the Court) he, in effect, has remained inactive. 

10. I note that for the purposes of background, the reasons for granting the order that the Minister seeks today are as follows:

    a)I am satisfied that the applicant had reasonable notice of the Court event today.

    b)I am satisfied that the applicant had reasonable notice of the consequences of his failing to attend the Court event today.

    c)If the applicant’s email should be treated as an application for an adjournment, that adjournment is refused for the reasons given above.

    d)When the matter was called today there was no appearance by the applicant and, therefore, the elements for granting the order that the Minister seeks are satisfied.

11. I will make the order that the Minister seeks. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 8 March 2018