Perese v Minister for Immigration and Border Protection
[2018] FCA 1049
•29 June 2018
FEDERAL COURT OF AUSTRALIA
Perese v Minister for Immigration and Border Protection [2018] FCA 1049
File number(s): NSD 1682 of 2017 Judge(s): FARRELL J Date of judgment: 29 June 2018 Catchwords: PRACTICE AND PROCEDURE – application to dismiss a matter pursuant to ss 20(5)(c) and (d) of the Federal Court of Australia Act 1976 (Cth) – applicant failed to comply with orders of the Court and attend case management hearings – application granted Legislation: Federal Court of Australia Act 1976 (Cth) s 20
Migration Act 1958 (Cth) s 501
Date of hearing: 19 March, 29 June 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr L Dennis of MinterEllison Counsel for the Second Respondent: The Second Respondent submits save as to costs ORDERS
NSD 1682 of 2017 BETWEEN: ROY PERESE
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
29 JUNE 2018
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed pursuant to ss 20(5)(c) and (d) of the Federal Court of Australia Act 1976 (Cth).
2.The applicant pay the Minister’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
The applicant, Mr Perese, is a citizen of New Zealand. On 24 July 2017, the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to revoke a mandatory cancellation of his subclass 444 (Special Category) visa.
The Tribunal’s reasons indicate that the visa was cancelled on 16 November 2016 pursuant to s 501(3A) of the Migration Act 1958 (Cth) as a result of Mr Perese’s conviction and sentence to a term of imprisonment for reckless grievous bodily harm on 29 September 2016. He was initially sentenced to a term of imprisonment of 16 months with a 12-month non-parole period. On appeal, on 3 November 2016, the sentence was reduced to a term of imprisonment of 14 months with a six-month non-parole period.
On 27 September 2017, Mr Perese, through his solicitor, filed an application for an extension of time to review the Tribunal’s decision - or at least what I take to be that. It has to be said that neither the ground expressed in the extension application nor the grounds expressed in the draft notice of appeal disclosed any familiarity with this area of the law.
On 25 October 2017, the Court made timetabling orders for preparation of the matter for hearing on 19 March 2018. Those orders were made by consent. The timetabling orders were not complied with.
On 2 March 2018, a case management hearing was held. The solicitor for Mr Perese did not attend. Prior to the case management hearing, the Court had been made aware that Mr Perese proposed to leave immigration detention to attend a family event in New Zealand. It was not apparent to the Court that he had received advice that he may be prejudiced in his capacity to return to the country, and accordingly the Minister was directed to serve Mr Perese personally and his legal representative with a letter advising that there may be consequences for Mr Perese’s capacity to re-enter Australia and for the further conduct of the application if he elects to leave the country before the hearing. New orders were made for preparation of the matter for hearing on 19 March 2018.
Mr Perese did leave the country and has not returned.
On the business day before the date listed for hearing, counsel for Mr Perese (Ms Gibbons), who had only recently been appointed, requested an adjournment because she had been instructed that the hearing was a case management hearing and she had not had an opportunity to prepare for a hearing of the application.
On 19 March 2018, the Minister did not oppose an application for an adjournment. The Minister advised that Mr Perese’s solicitor had lost her practising certificate earlier in the week and a notice of ceasing to act has since been filed. Ms Gibbons indicated that she was not willing to accept a direct brief and no alternative solicitor had been instructed. She indicated that she was willing to attempt to find a solicitor who would be willing to act for Mr Perese, but she would not be in the country from early May. The Court noted that it would be minded to entertain an application to dismiss the proceedings for want of prosecution if Mr Perese did not take any action to progress the matter. The matter was listed for case management today, 29 June 2018.
On 6 May 2018, Ms Gibbons advised chambers that she had spoken with Mr Perese and written to him about his application on 9 April 2018. A copy of that letter was forwarded to chambers and the Minister’s counsel. Submissions from the bar table indicate that the Minister’s legal representative received an email acknowledging that Mr Perese had received Ms Gibbons’ letter.
My chambers communicated with the Minister’s representative and Ms Gibbons (as the Court did not have an email address for Mr Perese) late last week in relation to today’s case management hearing. The Court has received no response from Mr Perese and no one has attended the hearing on his behalf. The Minister’s representative has indicated that the Minister has not received any indication from Mr Perese of his intention to attend today.
In all of the circumstances, I am satisfied that there have been persistent failures on Mr Perese’s behalf to comply with the Court’s orders. In addition, Mr Perese has not attended today to assist in the further preparation of the matter and there has been a want of prosecution. In those circumstances, I will order that the matter be dismissed pursuant to the power contained in s 20(5)(c) and (d) of the Federal Court of Australia Act 1976 (Cth).
In the circumstances, I think it entirely appropriate that an order for costs be made in favour of the Minister. So I order that this matter be dismissed; and that the applicant pay the Minister’s costs as agreed or taxed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 12 July 2018
0
0
2