Bow15 v Minister for Immigration and Border Protection
[2017] FCA 882
•2 August 2017
FEDERAL COURT OF AUSTRALIA
BOW15 v Minister for Immigration and Border Protection [2017] FCA 882
Appeal from: Application for leave to appeal from: BOW15 v Minister for Immigration [2016] FCCA 2814 File number(s): NSD 2000 of 2016 Judge(s): FARRELL J Date of judgment: 2 August 2017 Catchwords: MIGRATION – application for extension of time and leave to appeal decision of Federal Circuit Court of Australia – where applicant did not attend hearing – application by respondent to dismiss application owing to applicant’s absence – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Federal Court Rules 2011 (Cth) rr 35.13, 35.33
Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited: BOW15 v Minister for Immigration [2016] FCCA 2814 Date of hearing: 27 July 2017, 2 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr C Robertson of DLA Piper Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 2000 of 2016 BETWEEN: BOW15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
2 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal is dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.The applicant must pay the first respondent’s costs as agreed or taxed.
THE COURT NOTES THAT:
Rule 35.33(2) provides that 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 is 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.Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The applicant seeks an extension of time and leave to appeal a judgment pronounced and orders made by a Judge of the Federal Circuit Court of Australia (FCCA) on 20 October 2016: see BOW15 v Minister for Immigration and Border Protection [2016] FCCA 2814.
Leave to appeal is required because the primary judge’s decision was interlocutory in nature: see r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). An extension of time is required because, under r 35.13 of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or orders made. On that basis, the application for leave to appeal should have been filed by 3 November 2016, but no application was filed until 21 November 2016, 18 days out of time.
On 21 June 2017, the Registry of the Court advised the parties that the application would be heard on Thursday, 27 July 2017 at 10.15 am. The Minister’s legal representative confirmed receipt of that email by a “reply to all” email. The Court also sent a copy of that email to the last known address of the applicant on the Court’s file on 27 June 2017.
The applicant did not appear at the time the matter was listed for hearing. The court officer called the matter three times outside the courtroom without response. The court officer also made enquiries of the Court’s Registry as to whether the applicant was within the court precinct. He had not appeared there.
The matter was stood over briefly so that the Minister’s legal representative could call the applicant on a mobile phone number provided on his application with the assistance of an interpreter in Mandarin and English who was present at the hearing. The Minister’s representative informed the Court that the applicant responded to that call and advised that he was not in Sydney. The Court was also informed that the applicant received the letter which was posted to him but he had not understood it. I indicated to the Minister’s legal representatives that I would be available for a hearing next week and suggested that he call the applicant to arrange a mutually convenient time. I stood the matter over for him to do so.
When the Court resumed, the Minister’s legal representative advised me that he and the applicant would be available to attend a hearing at 2.15 pm on Wednesday, 2 August 2017. The matter was set down for hearing at that time and it was noted that the applicant had been given every indulgence in relation to his attendance at the hearing.
The hearing today commenced at 2.30 pm, 15 minutes after the appointed time. The applicant did not appear. The Minister’s legal representative handed up the affidavit of Eleanor Jane Guy affirmed on 1 August 2017 deposing to correspondence sent to the applicant by express post to his residential and postal address and to his email address, giving notice of today’s hearing.
I am satisfied that the applicant has had notice of today’s hearing because the applicant sent an email to the Court’s Registry at 8.40 pm on Sunday, 30 July 2017 stating that he could not attend today’s hearing for “personal reasons”. By email in English and Mandarin, the Court advised the applicant that that explanation was too vague. The applicant was advised that the hearing would not be deferred without a clear explanation justifying deferral, for instance, because he was medically unfit to attend the hearing. Such an explanation would need to be supported by an appropriate medical certificate. The applicant responded on Monday, 31 July at 8.28 pm saying “I read what you mean To tell the truth I have no major disease”. His next sentence was unintelligible. He expressed scepticism concerning his prospects of success at the hearing and concluded: “So I do not want to delay your valuable time I have up Even so I am still grateful to the Australian Government for its protection.”
The Minister’s representative applied to the Court for orders under r 35.33(1)(a)(i) of the Federal Court Rules2011 (Cth) and s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and for costs as agreed or taxed.
In these circumstances, I am satisfied that the Court should make an order under r 35.33(1)(a)(i) dismissing the application for extension of time and leave to appeal with costs as agreed or taxed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 2 August 2017
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