FTY17 v Minister for Immigration and Anor

[2018] FCCA 3981

FEDERAL CIRCUIT COURT OF AUSTRALIA

FTY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3981

Catchwords:
MIGRATION – Application in a Case to reinstate – whether there is a satisfactory explanation for non-appearance – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: FTY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4047 of 2017

Judgment of: Judge Nicholls

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

Applicant: No appearance

Appearing for the Respondent:	Ms J. Noakesmith
Solicitors for the Respondent:	DLA Piper Australia

ORDERS

1. The Application in a Case made on 17 October 2018 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is not permitted to make any further application in relation to the Administrative Appeals Tribunal decision of 4 December 2017 without leave of the Court.

3. The applicant pay the first respondent’s costs set in the amount of $350.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4047 of 2017

FTY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION AND ANOR

First Respondent

ADMINISTTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised From Transcript)

(As Corrected)

1. I have before me today an Application in a Case lodged electronically with the Court’s Registry on 17 October 2018, and accepted for filing under the Court’s Rules on that date. The Application in a Case related to a substantive application made by the applicant on 28 December 2017, pursuant to s.476 of the Migration Act 1958 (Cth), (“the Act”), seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 4 December 2017, affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.

2. The matter came before a Registrar of the Court at a first court date on 5 February 2018. The substantive application was set down for mention before a Registrar of the Court on 4 October 2018. On that occasion, the applicant did not appear, and the substantive application was dismissed for non-attendance. I note that in evidence before me now (“RE1”) is an email sent by the Minister to the applicant sent to the email address he had provided in his substantive application. It provides notice to the applicant that the time and date for Court attendance is 4 October 2018 at 10:15 am.

3. The applicant subsequently filed his Application in a Case seeking reinstatement of his substantive application.  The Application in a Case refers to an affidavit filed by the applicant at the same time to which is annexed a medical certificate. The medical certificate is dated 2 October 2018.  It is completed by a Dr Stephen Tan who has diagnosed the applicant with: “Burnout. Exhaustion. [and] Epigastric pain”, and certifies that:

   “In my opinion, he is unfit for his normal work from Thursday, 4 October 2018 to Friday, 5 October 2018 inclusive.”

4. The applicant’s affidavit which accompanied his Application in a Case states that he “emailed” the medical certificate to the Court on “5th Oct” [5 October].  It therefore was not before the Registrar on 4 October 2018 when the order dismissing the substantive application was made.  His non-attendance at that time remained unexplained before the Registrar.

5. The medical certificate provided by the applicant now to seek to explain his non-attendance before the Registrar says nothing about his capacity to attend Court at that time. Nor importantly does it address any incapacity on the part of the applicant to communicate with the Court electronically on the day of the previous Court occasion. That is on 4 October 2018.  Nor for that matter has the applicant made any attempt to contact the Court’s Registry today. Whatever the applicant may have told the doctor, attending Court cannot be described as “normal work”. 

6. As I said earlier the Application in a Case was filed electronically.  The applicant was notified by a return notice attached to the application by the Court’s registry as is required by the Court Rules of the time date and place of the hearing of his Application in a Case (30/10/2018 at 9:30 am).

7. When the matter was called there was no appearance by, or on behalf of, the applicant. Again, at about 10:05 am there was still no appearance by, or on behalf of, the applicant. I am not aware of any application for an adjournment, any explanation by the applicant as to why he did not, or could not, attend.

8. In those circumstances, the Minister sought dismissal of the Application in a Case, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court rules2001 (Cth), that is, for non-attendance.

9. I make the following findings.

10. One, I am satisfied the applicant had reasonable notice of the Court event today. 

11. Two, when the matter was called the applicant did not appear.  He has therefore not attended at Court to prosecute his Application in a Case.

12. Three, no explanation for the non-attendance is available.  Nor has there been any application for any adjournment.  The medical certificate before the Court does not relate to 30 October 2018.

13. It is therefore appropriate, that I make the order that the Minister seeks.

14. It is also appropriate, in the circumstances given that this is the second occasion when the applicant has not attended at a Court event in the same matter, that I also make an order that any further application relating to the Tribunal’s decision be subject to the leave of this Court. 

15. The Minister also sought costs.  It is appropriate that an order for costs be made in the usual way. Costs follow the event.  The applicant has, without explanation, not attended Court.  I am satisfied that the amount sought by the Minister is reasonable, I will also make that order. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 1 March 2019

CORRECTION (11 March 2019)

The end certification date was changed from 30 October 2018 to 1 March 2019.