Gill v Minister for Immigration and Border Protection

[2018] FCA 222

FEDERAL COURT OF AUSTRALIA

Gill v Minister for Immigration and Border Protection [2018] FCA 222

Appeal from:	Gill v Minister for Immigration & Anor [2017] FCCA 2552
File number:	VID 1102 of 2017
Judge:	MIDDLETON J
Date of judgment:	1 March 2018
Legislation:	Federal Court of Australia Act 1976 (Cth)
Date of hearing:	1 March 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	The appellant did not appear
Counsel for the First Respondent:	Mr A Yuile
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

VID 1102 of 2017

BETWEEN:

MANPREET KAUR GILL

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	1 MARCH 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1. By notice of appeal, filed on 13 October 2017, the appellant appeals some orders of the Federal Circuit Court, made on 22 September 2017.  Those orders concerned an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, dated 1 February 2016, and affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection.  The delegate’s decision was made on 28 October 2014, and was a refusal to grant the appellant a Student Temporary Class TU (subclass 572) visa.  The judge below set out a comprehensive history of the matter, leading to the Tribunal’s decision, at [3] to [20] of his Honour’s reasons for judgment, delivered on 23 October 2017.  I do not need to otherwise rehearse that history.

2. The matter has been called on for hearing this morning, and the appellant has not appeared.  The first respondent desired to proceed with the hearing.  The background to the appellant’s failure to appear is that on 27 February 2018, the Court received an email from the appellant which enclosed a purported medical certificate, to certify the appellant had “severe back pain and will not be able to travel to attend any court from 27 February 2018 to 2 March 2018 inclusive.”  I should say that the medical certificate was not otherwise verified. 

3. In response, the Court offered to accommodate an appearance by telephone link, so that the appellant could appear in that way.  Following from that indication, the Court then received a further email written by a friend of the appellant, stating that the appellant was suffering from a bad medical condition, and “she is so stressed over, because of her illness, so she is not able to communicate on the telephone about her matter now, so please can you adjourn next date for her”.

4. Yesterday, the Court through my chambers, attempted to call the phone number that was put on the appellant’s notice of appeal as the contact point, and the Court called that number again at the beginning of the hearing this morning.  On these various occasions, the number has not responded other than, on the first occasion, where my Executive Assistant rang, there was someone at the end of the telephone saying, “Hello”, but the conversation finished at that stage.  Subsequent attempts to ring the number failed as the number was not responding at all.

5. On the basis an adjournment was applied for on behalf of the appellant, I am not satisfied any proper foundation has been made for any adjournment of the hearing.  The medical certificate and information provided are an unsatisfactory basis to grant any adjournment. 

6. Under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the Court has the power to dismiss an appeal for failure of the appellant to attend a hearing relating to the appeal.

7. This power must be exercised with care and one must be mindful that an appellant be given an opportunity to present his or her case.  However, there is also a need for finality, and I am of the view that the appellant has had ample opportunity to appear and present her case to the Court, including via the telephone link offered. If during the course of that presentation it became apparent to the Court that an adjournment was necessary, then that could have been considered. 

8. However, the appellant has simply not appeared in the Court to prosecute the appeal and I am not satisfied, on the material I have been given, that this has been done for proper cause. 

9. I do not consider that I should otherwise, in the circumstances, go into the merits of the appeal, where all I have at the moment are the submissions of the first respondent. 

10. I will order that the appeal be dismissed, with costs, on the basis of the appellant’s failure to appear.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:       2 March 2018