Cak15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 939
•9 August 2021
FEDERAL COURT OF AUSTRALIA
CAK15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 939
Appeal from: CAK15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2722 File number: WAD 556 of 2019 Judgment of: JACKSON J Date of judgment: 9 August 2021 Date of publication of reasons: 10 August 2021 Catchwords: MIGRATION - appeal from the Federal Circuit Court - judicial review of a decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse grant of protection visa - appellant failed to appear at hearing - no error on part of primary judge asserted in notice of appeal - appeal dismissed for failure to appear Legislation: Federal Court Rules 2011 (Cth) r 36.75, Schedule 3, Item 15 Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Norbis v Norbis (1986) 161 CLR 513
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 9 August 2021 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Mr S Cummings Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 556 of 2019 BETWEEN: CAK15
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed for default of appearance.
2.The appellant must pay the first respondent's costs of the appeal fixed in the sum of $4,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
This is an appeal from a decision of the Federal Circuit Court of Australia. The primary judge dismissed the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) to refuse to give the appellant a protection visa.
The appellant did not appear at the hearing. Consequently, the Minister moved for the dismissal of the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). That rule relevantly provides that if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the court for an order that the appeal be dismissed. I was satisfied that an order in the terms sought by the Minister was appropriate. These are my reasons.
The appellant was made aware of the time and date of the hearing and the potential consequences if he did not appear. The court has sent multiple communications to the email address provided by the appellant to notify him of the hearing date. My Chambers first notified the parties of today's hearing date by email on 11 May 2021. On 29 July 2021, a further email from my Chambers notified the parties that the hearing would proceed by video using Microsoft Teams and provided the dial in details for the hearing, including information about a test call the parties were required to attend. That email also stated that 'if the appellant does not attend the hearing on 9 August, that may result in the appeal being dismissed in his absence'.
On 3 August 2021, in response to the email of 29 July, the appellant emailed my Chambers stating that he had 'received read [sic] and understood the gist of the email'. The appellant also requested 'an extended time period to present my case to the minister' on the basis that he had not been able to retain a solicitor to represent him due to financial difficulty. Shortly after receiving this email, the Minister indicated that he opposed the adjournment request. Chambers advised the parties that the hearing would proceed as listed on 9 August 2021 and the appellant's application for an adjournment would be heard at the commencement of the hearing. Chambers also advised that the application must be supported by sworn affidavit evidence and that if the appellant did not attend the hearing, that may result in the appeal being dismissed in his absence. The appellant had also failed to attend a test call scheduled for 3 August 2021, so the email asked the appellant to confirm another time when he would be available to attend a test call.
Having received no response from the appellant regarding the test call, on 6 August 2021 the court contacted the appellant by telephone and made arrangements for the appellant to dial in one hour before the hearing to test his audio-visual connection. Those arrangements were confirmed in an email sent from my Chambers to the parties the same day. In the same email, Chambers confirmed that the hearing would proceed by video link and attached a copy of the orders made on 6 August which permitted the parties to deliver oral submissions by way of video link at the hearing.
The hearing was listed to commence at 10.15 am AWST. At 9.18 am AWST on the day of the hearing, my Chambers received an email from the appellant stating the following:
I regret to inform you all that I will not be attending due to a sudden chest infection. please excuse me for my absence.
My Chambers replied as follows (original emphasis):
Dear Parties
I refer to the above proceeding, the email from the appellant below and the hearing listed for today at 12:15pm (Melbourne time).
Chambers reads the appellant’s below email as acknowledging that today’s hearing will proceed. Chambers also assumes from that email that the request for an adjournment made last week is not pressed and the appellant does not otherwise apply for an adjournment on medical grounds. The court will proceed on that basis. If any of those assumptions are wrong, the appellant should notify Chambers urgently.
Please be aware that the hearing may proceed in the appellant’s absence and if the appellant does not attend today’s hearing, that may result in the appeal being dismissed in his absence.
Kind regards
The court did not receive any further communications from the appellant before the hearing.
While the appellant provided some explanation for his non-appearance, his email simply said he would not attend the hearing and did not seek an adjournment of the appeal. In regards to the adjournment request made on 3 August 2021, in the event, the appellant did not file any affidavit evidence in support of his request, nor did he seek to proffer any further submission or explanation in support, by way of email correspondence or otherwise.
The email sent from my Chambers to the parties this morning made clear that the court would proceed on the basis that the request for an adjournment made on 3 August 2021 was not pressed and the appellant did not otherwise apply for an adjournment on medical grounds. The court did not receive any response to that email. Accordingly, I proceeded on the basis that no adjournment was sought.
While I make no determination as to the merits of the appeal, it is relevant to the exercise of the discretion that the notice of appeal does not on its face contain grounds which, if accepted, would result in the appeal being allowed. The appellant sought to raise the same issue in this appeal as was raised before the primary judge. That issue was whether the Tribunal had erred in failing to make an obvious enquiry about a matter said to be central to the appellant's claim for protection. The ground of appeal asserted that the primary judge erred by not accepting the ground of review before him, but did not identify what the error was.
Appeals to this Court constitute a 'procedure for the correction of error' so that '[t]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [30] (Gageler J), quoting Norbis v Norbis (1986) 161 CLR 513 at 519. The appellant has identified no error in the reasons of the primary judge. Therefore, on the face of the notice of appeal, the appeal would seem to have had little merit.
For those reasons it was appropriate to exercise the discretion under r 36.75 to dismiss the appeal on the basis of the non-appearance of the appellant. The appellant will have liberty to apply to vary or set aside the order dismissing the appeal: see r 36.75(2).
The Minister sought his costs of the appeal to be fixed in the sum of $4,500, which is less than the amount that can be claimed in a Short Form Bill for an appeal involving a migration decision that is dismissed after hearing, namely, $7,241: Federal Court Rules Item 15 of Schedule 3. The amount proposed also appropriately took account of the fact that the hearing today was short due to the non-appearance of the appellant. I considered such an order to have been appropriate in the circumstances.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 10 August 2021
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