Mzzov v Minister for Immigration and Border Protection

[2016] FCA 599

FEDERAL COURT OF AUSTRALIA

MZZOV v Minister for Immigration and Border Protection [2016] FCA 599

Appeal from:

Application for extension of time: MZZOV v Minister for Immigration & Anor [2015] FCCA 3539

File numbers:

VID 909 of 2015

Judge:

MORTIMER J

Date of judgment:

24 May 2016

Catchwords:

MIGRATION – Application for extension of time to appeal – sections 25(2B)(ba) and 25(2B)(bb) of the Federal Court of Australia Act1976 (Cth) – rule 36.74 of the Federal Court Rules 2011 (Cth) – power of the Court to dismiss application for extension of time to appeal where applicant fails to appear at hearing – where no reasonable prospects of success on appeal ­– application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) subs 25(2B)(ba), 25(2B)(bb)

Federal Court Rules 2011 (Cth) rr 36.74, 36.75

Cases cited:

Thomas Borthwick & Sons (Pacific Holdings) Ltd and Others v Trade Practices Commission (1988) 18 FCR 424

Date of hearing:

24 May 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

The Applicant did not appear

Solicitor for the First Respondent:

Melissa Gangemi of Australian Government Solicitor

Solicitor for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

VID 909 of 2015

BETWEEN:

MZZOV

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	24 MAY 2016

THE COURT ORDERS THAT:

1.The application for an extension of time to file a notice of appeal is dismissed, pursuant to subsections 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth), and rule 36.74 of the Federal Court Rules 2011 (Cth), upon the failure of the applicant to attend the hearing of this application.

2.The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)

MORTIMER J:

1. When this matter was called on at 10.15 am this morning, there was no appearance by the applicant. The Court now having undertaken a number of steps and inquiries, I propose to dismiss the application for an extension of time, on the basis that the applicant has failed to appear. When he filed his application for an extension of time, the applicant provided with that application a mobile phone number. He later – in a phone conversation with my associate on 16 May 2016 – provided my associate a contact email address. As the course of events I now describe demonstrates, despite his language difficulties, the applicant has been responsive to both emails and telephone calls in relation to this application.

2. Prior to last week, the applicant was provided with the usual notifications about the hearing of his application, those notifications dating from as early as March 2016. The Minister’s representatives have also been in contact with him about these matters. Last week, on 16 May 2016, in the afternoon, my associate called the applicant with a Tamil interpreter to remind him that he had not yet filed his written submissions, and that the judge would extend the deadline for those submissions until Thursday, 19 May 2016 at 4 pm. The applicant mentioned in this conversation that he did not know what written submissions were and how to write them.

3. I had the matter followed up the next day on 17 May 2016, when Ms McIlwain, who is the Self-Represented Litigant Coordinator for the Court, called the applicant and advised him again about the need to lodge his submissions in conformity with the Court’s orders. The applicant told Ms McIlwain that he understood he had to provide the submissions and would do so by the end of the week. I note that no submissions have been filed. The next day, on 18 May 2016, the applicant emailed my associate in English to request an urgent three month adjournment of the matter, on the basis that he had recently found out that the person who helped him lodge his application to the Court had not organised legal representation for him for the extension of time application hearing. He stated that:

   I do not know English and did not complete my high school in my own language, Tamil, in Sri Lanka. This is all frightening and confusing to me.

4. I note, however, that the applicant was at least able to express himself to this extent in English, and to do so by email. The applicant informed my associate in this email that he had contacted a private lawyer in Noble Park, but that he needed a three month adjournment in order for that lawyer to act for him. The following day, on 19 May 2016, my associate emailed the applicant in English, copying in the Minister’s representatives, to notify him that the Court would not grant the requested adjournment for three months before the hearing, even if the Minister was willing to consent. Rather, the applicant was told that, if he wanted to seek such an adjournment, he could do so at the hearing.

5. My associate also provided referrals for him to legal centres for assistance with his written submissions. My associate confirmed to him in this email the date and time of the hearing, although the wrong time was provided. That small error was quickly corrected and a second email was sent to the applicant telling him of the 10.15 am time, and he was asked to confirm receipt of that email, which he did on 19 May 2016.

6. Today, on 24 May 2016, the following occurred: the matter was called on and there was no appearance at 10.15 am for the applicant. My associate called the applicant on his mobile phone, the number that he had supplied with his application. That rang out and there was no answer. The matter was stood down and my associate called the applicant’s mobile again, with no answer. My associate then emailed the applicant, to tell him the Court was waiting to hear his matter, and he was asked to notify my associate of his whereabouts. There was no response to that email. Shortly thereafter, Ms McIlwain from the registry called the applicant, again with no answer.

7. The Court reconvened; the Minister’s representative submitted that the Court could dismiss the proceeding for failure to appear under r 36.75 of the Federal Court Rules 2011 (Cth). However, it appeared to me that rule did not supply the authority for such a dismissal. I referred the Minister’s representative to some cases that appeared on point and she agreed that she would look at those cases in the subsequent adjourned period. I decided to give the applicant a further opportunity to appear and stood the matter down until 2.15 pm.

8. I then also requested the Tamil interpreter who was present in court to assist my associate by leaving a further voicemail message for the applicant on his mobile phone, this time in Tamil. That message was left. It was to the following effect: that the applicant’s matter was listed at 10.15 am and he should have attended; that the matter had been stood down until 2.15 pm today, and the applicant must attend then; that he should arrive at court at 1.45 pm, so that the Tamil interpreter could assist him; he was told the courtroom number in which the matter would be dealt with; and he was told that his application may be dismissed if he did not attend the hearing at 2.15 pm today. My associate then attempted again to call the applicant on his mobile after this, a couple of hours later, to no effect. And as at the time of giving these reasons for judgment, there has been no communication or appearance by the applicant.

9. I do not consider that there is any basis to further postpone the determination of the application. The course I propose to take in the absence of the applicant is to dismiss the application for an extension of time under r 36.74(1)(c) of the Federal Court Rules. I note similar powers exist in subs 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) in relation to the exercise of powers in the Court’s appellate jurisdiction. Applications for extensions of time are heard by the Court – whether constituted by a single judge or a bench of three judges – in its appellate jurisdiction: see Thomas Borthwick & Sons (Pacific Holdings) Ltd and Others v Trade Practices Commission (1988) 18 FCR 424.

10. I am satisfied that both under s 25(2B) and r 36.74, the Court has the power to dismiss the application for an extension of time, either on the basis that there has been a want of prosecution or on the basis of the failure of the appellant to attend a hearing relating to the appeal. In contrast to the language in r 36.75, I consider that a hearing “relating to the appeal” includes a hearing in relation to an application for an extension of time in which to bring an appeal. I consider that it is appropriate in the circumstances to make these orders, because in my view all reasonable efforts have been made to encourage and facilitate the attendance of the applicant at the hearing today, and he has failed to appear.

11. I should add that, in any event, I have carefully read both the decision of the Refugee Review Tribunal and the decision of the Federal Circuit Court relevant to the applicant’s application for extension of time. The Federal Circuit Court found there was no jurisdictional error in the reasons of the Tribunal and I agree with its assessment. Accordingly, in my view, an application for extension of time would have served no useful purpose, because any appeal would be doomed to fail. The same can be said of any postponement of this application on the non-appearance of the applicant today. Accordingly, I make the following orders:

    (1)The application for an extension of time to file a notice of appeal is dismissed, pursuant to subs 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth), and r 36.74 of the Federal Court Rules 2011 (Cth), upon the failure of the applicant to attend the hearing of this application.

    (2)The applicant pay the first respondent's costs of and incidental to the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate:

Dated:        27 May 2016