Bwe18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 2044
•19 November 2019
FEDERAL COURT OF AUSTRALIA
BWE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2044
Appeal from: BWE18 and Ors v Minister for Home Affairs and Anor [2019] FCCA 1523 File number: QUD 359 of 2019 Judge: LOGAN J Date of judgment: 19 November 2019 Catchwords: PRACTICE AND PROCEDURE – application for dismissal of an appeal for want of prosecution – where the appellants appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where the appellants did not appear at the hearing of the appeal – where the appellants requested an adjournment to seek legal representation – where the Court requested that the appellants provide better particulars of the steps they had taken to secure legal representation – where the application to adjourn was to be heard at the commencement of the listed hearing – where the notice of appeal did not specify any error in the judgment below Legislation: Migration Act 1958 (Cth) Date of hearing: 19 November 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Appellants: The appellants did not appear Counsel for the First Respondent: Mr P Nolan Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
QUD 359 of 2019 BETWEEN: BWE18
First Appellant
BWF18
Second Appellant
BWG18
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.In respect of exhibits 1, 2, 3, 4, 5, 6, 7 and 8, no copy thereof be made available to a person other than a party or their legal representative or the Minister or a member of his Department without redaction of the names of any of the appellants or their respective email addresses.
2.The appeal be dismissed.
3.The first and second appellants pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
4.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
This is an application by the first respondent, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) for the dismissal of an appeal against a judgment of the Federal Circuit Court given on 13 May 2019. On that day that court dismissed with costs an application by the present appellants for the judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) given on 26 February 2018. By that decision the Tribunal affirmed an earlier decision of a delegate of the Minister not to grant the appellants their protection visas, for which they had applied under the Migration Act 1958 (Cth).
One of the appellants is a child. I note that there is no order made in respect of the appointment of a litigation representative for the child. Strictly speaking, in the absence of such an order and insofar as the appeal is made by an infant without a litigation representative, the appeal by that person is incompetent. That, however, is a matter of necessary form, and it is not upon that basis that the Minister has moved for the dismissal of the appeal. That deficiency, in any event, would not extend to the adult appellants. The basis for the Minister’s application is that when the appeal was called on for hearing this afternoon at the appointed time, there was no appearance by or on behalf of the appellants.
There is a history in relation to the listing of this case to which reference ought to be made. The appeal was listed for hearing today on 11 September 2019 via a notice of listing sent to each of the parties at their nominated email addresses for service by an officer in the Court’s registry. On 29 October 2019, the adult male appellant foreshadowed (the appellant) an application for adjournment on the basis of a desire to seek legal advice. In the period of some three weeks which has elapsed thereafter, further correspondence between the Court’s registry and the appellants on the subject of an adjournment of today’s hearing occurred.
As part of that exchange, the Court via a registry officer inquired of the Minister via his solicitors as to the Minister’s disposition in relation to an adjournment of the hearing. The Minister’s position was that he would consent to a short adjournment, providing there were some particular prospect of legal representation. It was made plain to the appellant by correspondence from the registry that he needed to set out in detail the endeavours which he had made to secure legal representation, and also some argument as to the prospects of the appellants actually securing such representation. The nominated time for filing the required affidavit and related submission was 14 November 2019. The appellant failed to file any submission or affidavit by that time, but did file by facsimile received this morning, after an exchange of email correspondence on 17 and 18 November with the registry, the draft of an interlocutory application for an adjournment, together with an affidavit, the substantive part of which is in these terms:
… i have applied online with perish lawyer regarding my federal hearing and still waiting for there response but its my request please adjourn my hearing which is on 19/11/2019 can you please adjourn my hearing until i get feedback from lawyer. i am awaiting for there call back, i will inform registry regarding outcomes of my lawyer.
[sic]
The listing today was for the substantive hearing of the appeal. The Minister prepared, filed and served written submissions to that end. No written submissions whatsoever have been filed on behalf of the appellants. The notice of appeal is noteworthy for the vague generality of the only ground of appeal specified, namely:
we are not happy with judge decision [sic]
The Minister’s submission was that the detail provided by the appellant in the affidavit sent by facsimile fell a long way short of the level of detail which would be required to give confidence that there was any utility in the granting of an adjournment, or that there had been any sufficient compliance with the terms on which it had been indicated to the appellants that the granting of an adjournment would be considered. The absence of any of the appellants from Court today meant that it was not possible for the provision of any further detail.
It is also to be noted that the appellants did seek assistance from the community legal centre known as LawRight. LawRight advised the Court in response to an inquiry on 12 November 2019 that its dealings with the appellants had concluded. Inferentially, the appellants have since then sought advice from some other quarter, but the submission made on behalf of the Minister as to the absence of any detail as to by when it might be expected that advice would be received is well-made, in my view. Also relevant is that there is in the notice of appeal just no particular alleged deficiency in respect of the judgment of the Federal Circuit Court. It is not for this Court to seek to make a case which the appellants have not themselves detailed.
Whilst it cannot be said, and the Minister in fairness has not submitted, that the appellants have ignored the listing or the terms on which consideration of an adjournment might occur, they have failed to provide any sufficient factual foundation, in my view, given the absence of identified error in the judgment below, for the granting of an adjournment. Rather, this is a case where there has been a default of appearance and which enlivens, and in my view should see the exercise of, a discretion to dismiss the appeal. Litigants in person are not subject to any different set of rules to other litigants in this Court. Of course allowance must be made for the very singular circumstances in which persons without legal training who come from abroad find themselves, particularly where their first language may not be English. Even allowing for all this, I am just not persuaded that there is any sufficient basis revealed in the appellant’s affidavit for the granting of an adjournment.
It is incumbent upon an applicant for an adjournment to descend to some detail as to the prospects of securing legal advice, and also to demonstrate that there is at least some arguable case which would warrant the granting of an adjournment, if only by identifying with precision prospective grounds of appeal. It was open to the appellants to seek at least, if not to obtain, an affidavit from the person from whom they had sought legal advice, which at least corroborated the making of a request for such advice and gave precision as to by when such advice was expected to be able to be given.
It therefore only comes to this. In the circumstances prevailing, there has been a default of appearance. The Minister is entitled, in my view, to the order which he seeks. The appeal is dismissed for want of prosecution and default of appearance.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 4 December 2019
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