RAHMAN v Minister for Immigration

[2016] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 117

Catchwords:
MIGRATION – No appearance by Applicants or solicitor for Applicants at the hearing – solicitor had earlier attended the first return date when the matter was fixed for hearing and a time-table agreed for the filing of material – proceeding dismissed for want of prosecution.

Legislation:

Federal Circuit Court Rules 2001, Division 13.1A, r.13.03C

Migration Act 1958 (Cth)

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200
Welsh v Digilin (2008) 250 ALR 13

First Applicant: MAHMUDA RAHMAN

Second Applicant: MUHAMMAD SHIRAATUR RAHMAN MUNSHI

Third Applicant: SHAYAN AVAIJOY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 59 of 2015

Judgment of: Judge Neville

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Canberra

Oral Reasons Delivered on: 1 December 2015

Written Reasons provided on: 22 January 2016

REPRESENTATION

Counsel for the Applicants: Mr H Ford

Solicitors for the Applicants: H. Ford

Counsel for the First Respondent: Mrs A Ryan

Solicitors for the First Respondent: Clayton Utz, Canberra

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent: No Appearance

ORDERS

1. The Application filed 4 August 2015 be dismissed.

2. The Applicant is to pay the Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 59 of 2015

MAHMUDA RAHMAN

First Applicant

MUHAMMAD SHIRAATUR RAHMAN MUNSHI

Second Applicant

SHAYAN AVAIJOY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The following brief reasons have been revised from the transcript.

2. On 31^st August 2015, this matter was fixed for hearing on 1^st December 2015.

3. On that occasion, Mr Ford appeared on behalf of all of the Applicants then listed.  The Respondent Minister was also represented.  A timetable was agreed between the parties for the filing of written submissions, as well as for the filing of the usual Court Book of relevant documents.  An order was also made giving the Applicant leave to file an Amended Application.  In the result, no amended Application was filed.

4. Written submissions on behalf of all parties were filed in accordance with the orders made on 31^st August 2015: the Applicants’ submissions were filed on 17^th November 2015; the Respondent filed submissions on 24^th November 2015. 

5. On 1^st December 2015, at the scheduled time for the hearing of 2:15pm, and there being no appearance by or on behalf of the Applicants, the matter was called.  There was no response to the call.

6. The Court is acutely conscious of (a) the often dire circumstances of Applicants in matters of the kind before the Court, and therefore the need to deal with such Applications as expeditiously and fairly as possible, and (b) the oppressively large number of matters that are required to be dealt with by this Court across its very broad jurisdiction.

7. Such considerations, in materially and procedurally different contexts, were relevantly dealt with by the High Court in the well-known, signal cases of AON Risk Services Australia Limited v Australian National University (“AON”) and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (“Expense Reduction”).[1]

   [1] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303.

8. In AON, the High Court emphasised that the resources of courts require diligent attention to the “proper and efficient use of [these] public resources.”[2] 

   [2] AON at CLR [23] and [24] (French CJ); [72] (Gummow, Hayne, Crennan, Kiefel and Bell JJ: “… to minimise the delay and expense of proceedings …”).  See also the plurality judgment at [97] and [98].

9. Similar comments were made by the High Court in Expense Reduction, for example at [51], where the Court referred to

   Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings.  The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties but upon the court and other litigants.

10. I recognise very readily that the current proceeding is not a commercial matter, and that the plight of the Applicants is a significant consideration.  However, in this matter they are legally represented.  The Court has allocated time to and resources for the resolution of the current review Application.  The Applicants’ lawyer was plainly aware of the date of the hearing.  This is evidenced not only by his presence at the first return date on 31^st August when orders were made by consent fixing the matter for hearing, but also because he complied with the Orders made on that occasion.  Further, Order 4 made last August required the solicitor for the Applicants to file an outline of submissions “on or before 14 days prior to the hearing.”  The Solicitor for the Applicants complied with this Order.

11. The Court cannot conduct a hearing with one party only, least of all, in this instance, in the absence of the moving parties.

12. Division 13.1A of this Court’s Rules provide for the Court’s powers for judgment “on default.” In particular, Rule 13.03C provides as follows:

    (1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

    (a)  adjourn the hearing to a specific date or generally;

    (b)  order that there is not to be any hearing, unless:

    (i)  the proceeding is again set down for hearing; or

    (ii)  any other steps that the Court directs are taken;

    (c)  if the absent party is an applicant—dismiss the application;

    (d)  if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;

    (e)  proceed with the hearing generally or in relation to any claim for relief in the proceeding.

    (2)  If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

13. In commenting on the Rules of the Federal Court of Australia as they then were (now r.5.22), in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200, the Full Court of the Federal Court said, at FCR 395 and 396 (Wilcox and Gummow JJ) (emphasis added):

    It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant….

    … The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases — whatever the applicant's state of mind or resources — in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

14. Their Honours’ detailed exposition has been cited with approval regularly, such as by the Full Court in Welsh v Digilin.[3]

    [3] Welsh v Digilin (2008) 250 ALR 13 at [12] – [13].

15. Unfortunately, in all of the circumstances, and in particular with no appearance by or on behalf of the Applicants, the Application filed on 4^th August 2015 must be dismissed, pursuant to Rule 13.03C of this Court’s Rules, with an order for costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules2001.

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

Associate: 

Date:  22 January 2016