CFD17 v Minister for Immigration and Border Protection
[2018] FCA 758
•23 May 2018
FEDERAL COURT OF AUSTRALIA
CFD17 v Minister for Immigration and Border Protection [2018] FCA 758
Appeal from: CFD17 v Minister for Immigration & Anor [2017] FCCA 3146 File number: NSD 115 of 2018 Judge: PERRY J Date of judgment: 23 May 2018 Catchwords: MIGRATION – non-appearance by applicant at the hearing of the application for an extension of time – application dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) Legislation: Federal Court Rules 2011 (Cth) r 36.75 Cases cited: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Date of hearing: 23 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondents: Mr J Pinder of MinterEllison ORDERS
NSD 115 of 2018 BETWEEN: CFD17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
23 MAY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.The appellant is to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)PERRY J:
1. INTRODUCTION
The applicant is a citizen of Malaysia who arrived in Australia on 12 November 2008 on an Electronic Travel Authority (Visitor) (subclass 976) visa. He applied for a (Class XA) visa (protection visa) on 26 March 2015. The applicant claimed to fear harm on the basis of his Chinese ethnicity, his political opinion, and from bikies associated with two people who were killed in a car accident in which he was involved.
The applicant seeks an extension of time within which to file a notice of appeal from a decision of the Federal Circuit Court (FCC) given on 14 December 2017. In that decision, the primary judge dismissed the applicant’s application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), dated 1 May 2017. The Tribunal’s decision in turn affirmed the decision by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a protection visa.
The applicant appeared without legal representation before the primary judge.
In his affidavit dated 6 February 2018 in support of his application for an extension of time, the applicant says that:
1.My appeal application for Federal Circuit Court has been dismissed and I disagree with its decision
2.I wish to do further review with your court and get a more fair decision
3.I delayed my further appeal application due to my financial hardship for the application fee which I was unable to afford within 21 days from the Federal Circuit of Australia. Also I could not get help in filling out all the forms required due to my limited English. I wish the Court can consider my difficult situation and accept my application for further appeal.
The draft notice of appeal states the following grounds:
1.RRT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal which I believe is a legal error
2.I am a Malaysia citizen and suffered from fears for retueing to my home country due to discrimination
3.RRT member and the Federal court did not well consider of my fears and persecution if return to my home country.
(errors in the original)
It is clear that the reference to the RRT in the proposed grounds is intended to be a reference to the Administrative Appeals Tribunal and the reference to the Federal Court in proposed ground 3, to the Federal Circuit Court.
No address for service has been filed by any legal representative for the applicant on this application and as such, it appears that he has not engaged legal representation. The appellant did not file any written submissions in advance of the appeal despite provision having been made for the filing of submissions by him in the orders of the Registrar made on 19 February 2018. The Minister filed written submissions on 14 May 2018 in accordance with those orders.
There was no appearance by the applicant at the hearing of the application for an extension of time today. As a result, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (FCR) for non-appearance and made oral submissions in support of that application.
In addition, the Minister relied upon an affidavit affirmed by Jennifer Louise Strugnell, solicitor, which was filed on 11 May 2018. In her affidavit, Ms Strugnell deposed that, as at the date of her affidavit and based upon the annexed records:
(1)the applicant is no longer in Australia, having departed on 26 April 2018;
(2)the applicant’s last visa was a WE Subclass 050 visa, being a Bridging (General) visa which has now ceased; and
(3)the applicant does not currently hold any Australian visa or any visa which would permit him to re-enter Australia.
The Minister also tendered correspondence advising of the hearing (then listed for 3:00 pm on 23 May 2018) and as to the service of documents on the applicant at the email address provided by him on his application for an extension of time within which to appeal.
For the reasons set out below, I consider that the application should be dismissed for non-appearance at the hearing of the application for an extension of time on 23 May 2018.
2. APPLICATION FOR DISMISSAL FOR NON-APPEARANCE AT THE HEARING
Rule 36.75(1)(a) of the FCR relevantly provides:
(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a) if the absent party is the appellant:
(i) the appeal be dismissed; or
(ii) the hearing be adjourned; or
(iii) the hearing proceed only if specified steps are taken;
…
While rule 36.75 refers to an “appeal”, the rule also applies to applications for an extension of time, for which provision is also made in Part 36 of the FCR.
In deciding that the application should be dismissed under rule 36.75(1)(a)(i), I have had regard to a number of factors in addition to the applicant’s failure to attend as follows.
(1)The appeal was called on for hearing on 23 May 2018 at approximately 2:25 pm. The applicant did not appear. The matter was called outside the courtroom three times and there was still no appearance for the applicant. In the circumstances, I adjourned the Court briefly in order to allow the Minister’s representatives to endeavour to contact the applicant by phone on the telephone number which he had provided on his application for an extension of time. The Minister’s counsel endeavoured to do so without success. The number simply rung out with no answer. The Court then resumed at approximately 2:35 pm. The Minister’s legal representative continued his submissions. I stood the Court down upon completion of those submissions by him until 3:10 pm in case the applicant had not received the correspondence advising that the time of the hearing had been changed from 3pm to 2.15pm and might still appear. When the Court again resumed, there was still no appearance for the applicant despite the matter being called outside the courtroom again three times.
(2)The applicant has apparently departed from Australia and as at 10 May 2018, the applicant had not returned. Nor, on the information as at 10 May 2018, was the applicant able to return to Australia as no visa was in force. His bridging visa had ceased by operation of law when he departed Australia on 26 April 2018. This state of affairs presumably explains the applicant’s non-attendance today, as well as raising the question of whether the current application is moot because a protection visa could not be granted unless the applicant was in Australia.
(3)The applicant did not file any written submissions in support of his application despite orders by the Registrar made on the 19 February 2018 providing that he was to file and serve a written outline of submissions no later than ten business days before the hearing date. A copy of the Registrar’s orders was sent by the Minister’s legal representatives to the applicant by email on 17 April 2018, together with a covering letter dated 13 April 2018. Importantly, the letter advised that:
We note that this matter is listed for hearing before the Court at Level 17, Law Courts Building, 184 Phillip Street, Queens Square, Sydney on 23 May 2018 at 3:00 pm. Please check which Court Room it is being heard [in] upon arrival.
Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011.
(emphasis in the original)
(4)The application book was served by the Minister upon the applicant by email on 21 February 2018 to the email address identified in the applicant’s application for an extension of time.
(5)The Minister’s outline of submissions was served on the applicant, together with Ms Strugnell’s affidavit by email on 15 May 2018, under cover of letters dated 11 and 14 May 2018 respectively. Both letters again advised that:
We note that this matter is listed for final hearing before the Court at the Level 21, Law Courts Building, 184 Phillip Street, Queens Square, Sydney on 23 May 2018 at 3:00 pm. Please check your assigned court room upon arrival.
Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011.
(Emphasis in the original)
(6)The Registry also sent an email to the parties on 13 April 2018 at 11:09 am advising that the matter was listed for hearing on 23 May 2018 not before 3:00 pm for up to one hour at the Law Courts Building, Queens Square, 184 Phillip Street Sydney. The email further advised that:
The courtroom allocated for this matter will be displayed on a notice board at the Federal Court on the day of the hearing or is available on the Daily Court Lists from late in the afternoon the day before the hearing.
Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.
The email also advised that the Court could be contacted about the matter and gave the telephone number and address for the National Operations Team of the Federal Court.
(7)Subsequently, on 21 May 2018, the Registry wrote by email to the applicant advising that the time for the hearing had been changed to 2.15 pm on 23 May 2018.
Given these matters, the applicant cannot have been under any misapprehension but that the application was being heard on 23 May 2018. I am satisfied in the circumstances that the applicant has not attended and has not provided any explanation for his non-attendance.
I have also taken into account that the proposed grounds of appeal are expressed in general terms which do not identify any specific errors in the decision of the FCC or, for that matter, in the Tribunal’s decision to affirm the decision of the delegate. There was no elaboration upon any of the grounds in the notice of appeal or by way of any submissions. None of the grounds on their face would appear to have any merit.
First, a bare allegation only is made in proposed ground one of a failure by the Tribunal and the primary judge to consider the applicant’s “explanation and supporting documents”. No submissions or evidence are particularised. Nor can any such error can be discerned from the Tribunal’s reasons or those of the primary judge. In this regard, the applicant made no oral or written submissions before the FCC.
Grounds two and three proceed on the assumption that the FCC has jurisdiction to reconsider the merits of the applicant’s application for a protection visa. However, neither this Court nor the FCC has jurisdiction to grant the applicant a visa, to consider whether he satisfied the criteria for the grant of a protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether this Court or the FCC agrees with the Tribunal’s decision and might have made different findings of fact is not, therefore, a basis for setting aside the Tribunal’s decision. Equally, insofar as proposed ground three alleges that the Tribunal “did not well consider of my fears and persecution if return to my home country”, the ground fails to identify a ground on which this Court or the FCC could interfere with the Tribunal’s decision.
Finally, I have had regard to the entitlement of the applicant to apply under r 36.75(2) to set aside the orders made today. Whether or not any such application succeeded would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the applicant’s failure to attend the hearing today and the strength of his case on the application if the order dismissing his application were to be set aside.
For these reasons, the application for an extension of time should be dismissed under rule 36.75(1)(a)(i) with costs as agreed or assessed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 23 May 2018
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