Cik17 v Minister for Immigration

[2020] FCCA 2232

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2232

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Applicant: CIK17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1691 of 2017

Judgment of: Judge Nicholls

Hearing date: 17 June 2020

Date of Last Submission: 17 June 2020

Delivered at: Sydney

Delivered on: 17 June 2020

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Ms K. Hooper (by telephone)

Solicitors for the Respondents: Mills Oakley Lawyers

Legal Representative for the Respondents: Ms S. Wright (by telephone)

ORDERS

1. The title of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 29 May 2017 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $7206.

4. Within 7 days of the date of the making of these orders the Minister’s solicitors write to the applicant by letter sent by way of email to the email address retained in the Minister’s records as being the applicant’s email address, notifying her of the orders made today and of Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1691 of 2017

CIK17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore; Revised from Transcript)

1. I have before me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 May 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 May 2017 which affirmed the decision of the delegate of the Minister (“the delegate”) not to grant the applicant a protection visa (“the visa”).

Background

1. The substantive application to the Court was made by the applicant with the assistance of Mr M. Newman, solicitor, who prepared the application. It contains one ground of review.

2. There was some administrative correspondence with Mr Newman [and the Minister’s solicitors] in setting the matter down for hearing. The matter was dismissed for non-appearance on 25 January 2018. Subsequently on 7 March 2019 the applicant, through Mr Newman, made an Application in a Case seeking reinstatement of the application.

3. In an affidavit dated 6 March 2019 made by Mr Newman, he explained that he had been unwell, seriously ill, and had missed the Court event at which the dismissal had occurred.

4. On 10 April 2019 orders were made, by consent, setting aside the relevant order made by the Registrar on 25 January 2018, pursuant to r.16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The hearing of the application in a case listed on 11 April 2019 was vacated. The applicant’s substantive application filed on 29 May 2017 was reinstated and set down for final hearing on a date to be administratively advised to the parties. Orders were made giving the applicant and the first respondent the opportunity to file and serve written submissions and list of authorities on or before 14 days and 7 days, respectively, prior to the hearing date. The final hearing date was to be administratively advised to the parties.

5. Sadly, Mr Newman who had appeared often before this Court, passed away. 

6. The applicant then appears to have had some assistance from counsel, Ms Lahoud. There was a communication from the Court to both the applicant and Ms Lahoud advising of the matter proceeding to a hearing on 17 June 2020. The hearing was to be conducted consistent with current COVID-19 requirements.

7. Ms Lahoud then notified the Court that she was no longer assisting the applicant. Steps were then taken to advise the applicant personally of the matter being set down. 

8. At the final hearing the Minister tendered a bundle of documents (“RE1”) which had been emailed from the Minister’s instructing solicitor to the Chambers’ email address on 16 June 2020.

9. There were two attachments to that email. These were a copy of an email dated 10 June 2020, which served the Minister’s submissions on the applicant, and a copy of an email dated 16 June 2020 to the applicant serving additional copies of the Court Book and instructions to the applicant for participating in the hearing via telephone. These were sent to an email address which was obtained from the Minister’s department for the applicant, as previously set out in email correspondence from the Minister to the Court and to the applicant, dated 1 May 2020.  

10. The email of 1 May 2020 was separately tendered by the Minister (“RE2”). The email relevantly contained the following:

    “…We refer to your email and provide the following update. We apologise for not meeting your requested deadline but there have been difficulties contacting the applicant.

1.At the time the applicant filed her judicial review application she was represented by Mr Mel Newman, solicitor, who sadly passed away last year.

2.The applicant has not filed and served an updated Notice of change of address reflecting her current contact details. We obtained additional contact details for the applicant from our client but have not yet received a response to our email notifying her of the Court’s intention to list this matter for a final hearing. We also requested that the applicant immediately file and serve a Notice of change of address to enable the Court and the Minister to communicate with her about her case.

3.In addition, we informed the applicant that we intended to inform the Court of our view that it was appropriate to list the matter for a final hearing on 4 June 2020, as proposed in your email to the parties dated 23 April 2020...”

1. The Minister agreed to that proposed date, which was however subsequently amended during the time when Ms Lahoud was involved in this matter. The matter was set down for final hearing today [17 June 2020] at 10:15am.

2. Based on the evidence, I am satisfied of the following.

3. One, the applicant has had legal assistance at various times including at the time that the substantive application was made to the Court and most recently, from Ms Lahoud of counsel.

4. Second, I am satisfied that, sadly, Mr Newman, who was on the record for the applicant, passed away. I am satisfied on the evidence that the applicant would have had notice of the need to file a notice of change of address to enable both the Court and the first respondent to communicate with her. I am satisfied, also, that she has not done so.

5. Even if the applicant had not been put on notice by the Minister’s email of 1 May 2020 to her, the applicant would have had the opportunity, given Ms Lahoud’s involvement, to have made inquiries as to what was required given Mr Newman’s unavailability, or inability, to assist her in the prosecution of her case.

6. Nothing has been filed by the applicant to provide any such contact details. I note from the evidence before the Court that attempts have been made by telephone to otherwise contact the applicant, including an attempt this morning in the presence of an interpreter in the Nepali language. That attempt to contact the applicant was unsuccessful.

7. I am satisfied on the evidence that is before the Court that the applicant has not provided a notice of her latest contact details to facilitate communication with her and the disposition of her case. Her failure to do so is in circumstances, as I said, where she did have the opportunity, given Ms Lahoud’s involvement, to have made appropriate inquiries.

8. I am otherwise satisfied that reasonable attempts have been made to contact the applicant and that the mere fact that those attempts have been unsuccessful is not a reason in all the circumstances that have been presented not to make the order that the Minister seeks today.

9. Ultimately, I am satisfied that reasonable steps have been taken to contact the applicant and that she did not provide, as would have been expected, relevant contact details. The applicant has not attended at the final hearing of her substantive application today. It is appropriate, in the circumstances, that the matter be dismissed for non-attendance.

10. I am mindful that even if some misadventure has befallen the applicant, the existence of r.16.05 of the Federal Circuit Court Rules 2001 (Cth) acts as, if I may call it, the safety net, that the applicant can seek to have her application reinstated, as indeed Mr Newman, I can only presume acting on instructions from the applicant, already sought and, based on a satisfactory explanation, was granted that reinstatement.

11. It is also appropriate that the title of the first respondent be amended in light of current Commonwealth Government executive arrangements. I will make that order.

12. The second order is that the application made on 29 May 2017 is dismissed for non-appearance by the applicant, pursuant to r.13.03C(1)(c) of the Rules.

13. Third, it is appropriate that an order for costs be made in the usual way. Costs follow the event. There is no argument that I can see that would argue against the making of the order in the usual way. The amount sought by the Minister is the amount that was contemplated in the relevant schedule to the Rules of this Court as being the indicative reasonable amount at the time the application was made. I am otherwise satisfied the amount sought is reasonable, having regard to the work done by the Minister’s solicitors. I will make the order that the applicant pay the first respondent’s costs set in the amount of $7206.

14. A fourth order is that within 7 days of the date of the making of these orders, the Minister’s solicitors write to the applicant by letter sent by email to the applicant’s email address retained in the Minister’s records as being the applicant’s email address, notifying her of the orders made today, and of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 13 August 2020