Hadchiti v Minister for Immigration and Border Protection
[2018] FCA 386
•20 March 2018
FEDERAL COURT OF AUSTRALIA
Hadchiti v Minister for Immigration and Border Protection [2018] FCA 386
File numbers: NSD 1898 of 2017
NSD 2039 of 2017Judge: MARKOVIC J Date of judgment: 20 March 2018 Legislation: Federal Court Rules 2011 (Cth) rr 5.22, 5.23(1)(b)(i) Date of hearing: 20 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondent: Ms S He of Mills Oakley Lawyers ORDERS
NSD 1898 of 2017
NSD 2039 of 2017BETWEEN: ELIAS HADCHITI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
20 MARCH 2018
THE COURT ORDERS THAT:
1.Pursuant to r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) the proceedings be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)MARKOVIC J:
The applicant has two proceedings before this Court: an originating application for review of a migration decision filed 31 October 2017 seeking declarations and orders in relation to a decision made by the respondent (Minister); and an application which was transferred from the Federal Circuit Court of Australia to this Court which concerned the decision of a delegate of the Minister and which similarly seeks orders against the Minister. Both proceedings were filed out of time and thus the applicant also filed and/or made an application for an extension of time in each proceeding.
Both proceedings were listed for case management hearing before me on 23 November 2017 at which time orders were made for the preparation of the applications for an extension of time for hearing and that those applications be listed for hearing on 17 April 2018.
On 10 January 2018 the Court was informed by the solicitors for the applicant that the applicant had voluntarily departed Australia from detention; that he had done so even though those solicitors had “informed him (prior to his departure) of Counsel’s advice that he would no longer have reasonable prospects of success if he were to do so”; and that those solicitors had informed Legal Aid of this advice who consequently terminated the grant of legal aid. The applicant’s solicitors also informed the Court that various attempts had been made to contact the applicant; that those attempts had failed to elicit a response; and that the applicant had been sent a notice of intention to cease to act which would be filed the following day.
The Minister’s records which were in evidence before me show that the applicant departed Australia on 14 December 2017. According to the evidence before me, he did so voluntarily and at the time of his departure, he provided a handwritten note to the Minister’s department setting out his address in Lebanon.
On 19 January 2018 the Minister’s solicitors wrote to the applicant at the address indicated in the applicant’s handwritten note, save for one amendment to clarify the district which was included in the note. That letter provided, among other things:
We are instructed that you have departed Australia and are now residing in Lebanon.
We also note that you are no longer represented by your solicitors, Jack Rigg Solicitors, and that you are no longer assisted by Legal Aid.
Your previous solicitors have informed the Court that they have made attempts to contact you in Lebanon without success.
As you are presently outside Australia and do not have legal representation, please respond to this letter by email, fax or post, to indicate whether you intend to pursue your Federal Court proceedings against the Minister for Immigration and Border Protection. Please also file and serve a Notice of address for service, so that both the Court and the respondent’s solicitors have your contact details.
If we do not receive a response to this letter by 16 February 2018 and if you take no further steps in these proceedings, we are instructed to seek an earlier hearing date. At that listing we will seek to have your proceedings dismissed for want of prosecution under rule 35.22(c) of the Federal Court Rules 2001, with costs.
On 22 January 2018 a copy of that letter was also sent by email to the applicant. The Minister’s solicitors have not received any response from the applicant to those letters.
On 13 March 2018 the Minister’s solicitors sent an email to the Court and the applicant in which they recited the history of the matter following the applicant’s departure and indicated that they had written to the applicant on 19 January 2018. Those solicitors informed the Court that at that time they had not received a response from the applicant and requested that the Court consider making orders vacating the hearing scheduled on 17 April 2018 and list the matter for case management hearing at an earlier date, at which time the Minister would seek to have both proceedings dismissed for want of prosecution under r 35.32(c) of the Federal Court Rules 2011 (Cth) (Rules) with costs.
On 14 March 2018 the Court sent an email to the applicant and the solicitors for the Minister noting that the hearing date on 17 April 2018 had been vacated and that the matter could be listed on either Tuesday, 20 March 2018 or Thursday, 29 March 2018 to hear the Minister’s application to have the proceedings dismissed. The parties were asked to confirm their preferred date.
On the same day the solicitors for the Minister confirmed that the Minister was available to appear on Tuesday, 20 March 2018. Later that day the Court confirmed that the matters had been listed for a case management hearing at 9.30 am on Tuesday, 20 March 2018. The applicant was copied into both the email from the Minister’s solicitor indicating their client’s availability and the email from the Court confirming the listing of the case management hearing.
Today when the matter came on for a case management hearing, there was no appearance on behalf of the applicant. The solicitor for the Minister informed the Court that they had not received any communication from the applicant in relation to any aspect of the matters including in relation to their listing today for case management hearing. The solicitor for the Minister also informed me from the bar table that they had this morning served on the applicant the affidavits affirmed by Xiangling He on 19 March 2018 on which the Minister relies in support of his applications to have these proceedings dismissed.
I am satisfied that the applicant has had sufficient notice of the listing of the proceedings today for case management hearing and has had sufficient notice of the Minister’s intention to make an application that both proceedings be dismissed.
I note that the Minister had notified the applicant that he intended to apply to have both proceedings dismissed for want of prosecution under r 35.32(c) of the Rules. However, as the Minister’s solicitor points out that rule applies to appeals in this Court. The proceedings commenced by the applicant are not appeals but were commenced in the Court’s original jurisdiction. Accordingly, the Minister relies on r 5.23(1)(b) of the Rules seeking an order that both proceedings be dismissed. While that is a different rule, the substance of the substantive order that the Minister seeks is the same and will have the same effect of dismissing the proceeding should the order be made. Because of that, I am prepared to proceed today, notwithstanding that a different rule was referred to in the notification to the applicant.
Rule 5.23(1)(b) provides:
5.23Orders on default
(1)If an applicant is in default, a respondent may apply to the Court for an order that:
…
(b)the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:
(i) immediately; or
(ii) on conditions specified in the order.
Rule 5.22 of the Rules sets out when a party is in default. The Minister relies on r 5.22(c) and/or (d) which relevantly provide:
5.22 When a party is in default
A party is in default if the party fails to:
…
(c) attend a hearing in the proceeding; or
(d) prosecute or defend the proceeding with due diligence.
I am satisfied based on the evidence before me that the applicant has failed to attend a hearing in the proceeding, namely the case management hearing listed today, of which he has had sufficient notice and has failed to prosecute the proceedings with due diligence. It is clear, given the applicant’s lack of response to the Minister’s attempts to contact him, that the applicant does not intend to prosecute his applications.
In those circumstances, I propose to make the orders sought by the Minister and to dismiss both proceedings.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 28 March 2018
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