CMC17 v Minister for Immigration

[2019] FCCA 3383

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMC17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3383

Catchwords:
MIGRATION – Where legal representative for the applicant has withdrawn – where notice of proceedings was brought to the attention of the applicant – where the applicant did not appear – where the applicant did not provide a satisfactory explanation for absence – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: CMC17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 210 of 2017

Judgment of: Judge Young

Hearing date: 9 April 2019

Date of Last Submission: 9 April 2019

Delivered at: Darwin

Delivered on: 9 April 2019

REPRESENTATION

Counsel for the Applicant: Ms Connolly

Solicitors for the Applicant: Connolly & Co

Counsel for the First Respondent: Ms Stokes

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

NOTING THAT: the solicitor for the Applicant filed a Notice Of withdrawal of lawyer today.

1. The application filed 7 June 2017 be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $4,000.00.

3. That in accordance with rule 16.05 of the Federal Circuit Court Rules 2001 the applicant has liberty to apply to reinstate the application within 28 days of the date of this order upon filing an affidavit showing an adequate explanation of her failure to appear today and which should annex a medical report (and not merely a medical certificate) about any illness that prevented her appearance.

4. If the application is reinstated order 2 in relation to costs will be discharged.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 210 of 2017

CMC17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal. The matter was called on today in Adelaide, I am sitting in Darwin. Ms Stokes for the Minister is in Adelaide and the applicant is based in Adelaide. The court officer called the matter in Adelaide and there has been no appearance by the applicant.

3. The applicant has been legally represented but on 22 August 2018 the applicant’s solicitor, Ms Connolly of Connolly & Co, filed a notice of intention to withdraw as a lawyer. On that notice of intention to withdraw she provided an address for service of the applicant and a telephone number. My associate has telephoned that number this morning, and there was no answer.

4. Ms Connolly neglected to file the notice of withdrawal as a lawyer required under the rules after filing a notice of intention to withdraw and she sent that to the registry yesterday but that was not accepted for filing. However, I do have a copy of it. The notice of withdrawal provides the same telephone number as the one called by my associate this morning.  Ms Connolly, notwithstanding her non-filing of the notice of withdrawal, sent an email to the registry yesterday apologising for her failure to file a notice of withdrawal. She said that she had been ill at the time and overlooked it. She also said that she was unable to appear tomorrow – well, not precisely. She said:

   I am injured at the moment.  Must I appear tomorrow? 

5. In any event, she has not appeared. In her email to the registry, she said the following yesterday in correspondence with the court-services officer.

   The hearing will definitely not proceed. I wrote to the client several times last year with no response. 

   So I am satisfied that the notice of intention to withdraw advised the applicant that the matter was listed for hearing today.

6. Further to the short reasons I was giving, Ms Connolly has attended court, having just arrived. She informed me that she has had no further contact with the applicant since last year. She has confirmed that the number is the one that she has for the applicant and she has also given me an email address to which we will send the orders I am about to make.

7. In addition, Ms Stokes has told me that on 2 April 2019 she sent, or caused to be sent, her submissions to the applicant by express post and that that letter has not been returned to sender as far as Ms Stokes is aware. In the circumstances, I am satisfied that the applicant’s failure to appear today is unexplained and she is in default. Pursuant to rule 13.03C, I propose to dismiss the application.

8. I have in fact just been informed by my associate that there was an email sent to the South Australian registry at 10.07 am this morning, where the applicant says as follows.

   Dear sir/madam. I am writing regards my hearing today, am not feeling well to attend it. Please, if possible, could you give me a different day of the hearing. Am so sorry for any inconvenience. As soon as possible I will send my sick certificate.

   And the email is from the email address given to me by Ms Connolly.

9. There is a further email from the client services officer in the registry in Adelaide this morning addressed to my associate:

   I have received a phone call from the applicant [I will not say her name] saying she is not well and will not be attending court today. I have asked her to send an email to the South Australian registry email address, informing the court she is not well and to include a sick certificate. She also said her solicitor will not be representing her, as I have indicated in a previous email.

10. It may be that the applicant is ill but I do note that she has not filed an alternative address for service since 2018. It is clear from the email from Ms Connolly, which I will make an exhibit, that she has not remained in touch with her lawyer, and in the absence of any detail about her illness, either in her telephone call with the client services officer this morning or her email to the registry (apart from “not feeling well”), I am not satisfied that she is in fact ill, particularly given the failure to answer her mobile telephone number this morning.

11. I am not satisfied there is a satisfactory explanation for her failure to appear. I will make the order dismissing the application in default of appearance. However, as is standard procedure when orders are made in default of appearance, there will be a notice at the foot of the order saying that the application may be reinstated on application within 28 days if there is a satisfactory explanation for the failure to appear. In the circumstances of this case, the satisfactory explanation would include a medical certificate.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 21 November 2019