Chen v Minister for Immigration and Border Protection

[2016] FCA 1027

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Border Protection [2016] FCA 1027

Appeal from:	Application for leave to appeal: Chen v Minister for Immigration & Anor [2016] FCCA 1122
File number:	NSD 763 of 2016
Judge:	BROMWICH J
Date of judgment:	23 August 2016
Catchwords:	PRACTICE AND PROCEDURE – where applicant did not appear, having not checked his mailbox over several months for notice of the listing of his case for hearing – application for leave to appeal dismissed for non-appearance
Legislation:	Federal Court Rules 2011 (Cth), rr 35.12, 35.33(1)(a)(i)
Date of hearing:	23 August 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the First Respondent:	Ms B Rayment, Mills Oakley Lawyers
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 763 of 2016

BETWEEN:

BING CHEN

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	23 AUGUST 2016

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant 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)

BROMWICH J:

Preliminary matters

1. Following below are revised reasons, given ex tempore, for dismissing an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 11 May 2016, by which his Honour dismissed an application to review a decision of the Administrative Appeals Tribunal under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Tribunal had, on 27 August 2015, affirmed a decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) visa, essentially for the reason that there was no evidence before the Tribunal that the applicant and his sponsor remained or were currently in a spousal relationship, the applicant not having responded to an invitation to comment on information under s 359A of the Migration Act 1958 (Cth).

3. Immediately prior to giving the judgment below, which has been revised from transcript, the following occurred:

   (1)The matter was called three times outside the courtroom, and there was no appearance by the applicant.

   (2)The solicitor appearing for the first respondent (the Minister):

   (a)made an application for summary dismissal of the present application for leave to appeal for non-appearance by the applicant;

   (b)tendered a copy of a letter from her firm to the applicant dated 16 August 2016, sent by express post to the applicant’s postal address as set out in his application for leave to appeal, enclosing a copy of the Minister’s submissions, informing him of the hearing date, and advising him that if he failed to appear, an application may be made for his application to be dismissed with costs – admitted as Exhibit 1 on the Minister’s application;

   (c)tendered a copy of a letter from the Federal Court Registry to the applicant dated 20 June 2016, sent to three different addresses given by the applicant, being:

   (i)his postal address as set out in his application for leave to appeal;

   (ii)his street address as set out in his application for leave to appeal (with an error in the spelling of the street name corrected); and

   (iii)an address which I was told was used for service in the Federal Circuit Court,

   advising him of the date, time and court address for the hearing of his application, providing other information and warning him that orders may be made in his absence – admitted as Exhibit 2 on the Minister’s application (a copy of this letter was also sent to the solicitors for the Minister and date-stamped as received on 24 June 2016);

   (d)advised that as requested by my associate, she had rung the applicant on the mobile number provided on the application for leave to appeal, with some assistance by the interpreter arranged by the Court to assist the applicant, and relayed to Court the following about that conversation (quoted from the transcript):

   ŸThe person identified himself as Mr Bing Chen, answered the phone, and said he wasn’t aware of today’s listing.  I then spoke to him in English.  The applicant has been here for a number of years, and we used the interpreter as was required.  He said he had not checked his PO Box.  I said the letter was sent from the court to three different addresses, and he said, “I didn’t check. I haven’t received them”.

   ŸAnd the applicant later, in answer to a question I put to him, said that he hadn’t checked his PO Box for one month.  I said, “Well, how does that explain the non-receipt of the letter from the court?” And he said, “I didn’t check”.

   ŸAnd I indicated that I would be making an application for his application to be dismissed in his absence as foreshadowed in my letter.  I indicated that he hadn’t attended the court below and had provided no explanation for that.  He said he wished the matter to be put over and could he do that.  I said I would oppose that application.  I indicated to him that he should remain available on the mobile number, if your Honour wished to call him, but I said I would be making an application that his matter be dismissed for failure to appear.

   (3)From the floor of the Court, the interpreter confirmed the accuracy of the account of the conversation given by the Minister’s solicitor and reproduced above.

   Application for dismissal and reasons (revised from transcript)

4. The Minister applied to have the application for leave to appeal in this case dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth). That rule provides that:

   (1)If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

   (a)if the absent party is the applicant:

   (i)the application be dismissed; …

5. The relevant triggering rule referred to in r 35.33(1)(a)(i) is r 35.12 in relation to an application for leave to appeal, which requires such an application to be filed in accordance with Form 117, and also provides what must be accompanied with that application. There is no doubt that this matter is a r 35.12 application for leave to appeal.

6. There is also no question that the applicant is absent.  To the extent that the applicant has sought a further adjournment, I have had regard to the fact that he did not respond to the necessary process before the Tribunal, did not turn up to the hearing before the primary judge, and has not turned up today.  In the case of not appearing today, that is not by reason of not having an opportunity to know that this hearing had been listed for hearing, but rather through the simple expedient, on his own account which I accept as recounted to me from the Bar table by the solicitor for the Minister, that he simply had not checked his mailbox, and he must not have done so for a period of several months since at least soon after 20 June 2016.

7. In those circumstances, the application by the Minister is properly made and the application for leave to appeal is dismissed under r 35.33(1)(a)(i).

   Conclusion

8. The application be dismissed with costs as agreed or assessed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate: 

Dated:        23 August 2016