Ram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1408
•11 November 2021
FEDERAL COURT OF AUSTRALIA
Ram v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1408
Appeal from: Ram v Minister of Immigration & Anor [2019] FCCA 3509 File number: NSD 74 of 2020 Judgment of: STEWART J Date of judgment: 11 November 2021 Catchwords: MIGRATION – application for an extension of time – where applicant has taken no steps in the proceeding nor filed any documents – where applicant is uncontactable – where applicant did not appear at the hearing – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 25
Federal Court Rules 2011 (Cth) rr 2.16(d), 5.23
Cases cited: Ram v Minister for Immigration & Anor [2019] FCCA 3509 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 11 November 2021 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: G Johnson Solicitor for the First Respondent: HWL Ebsworth Lawyers ORDERS
NSD 74 of 2020 BETWEEN: BITU RAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 24 January 2020 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)STEWART J:
On 24 January 2020, the applicant filed an application for an extension of time to appeal against a decision of the Federal Circuit Court of Australia. That decision dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal which in turn affirmed a decision of a delegate of the Minister for Immigration (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) to refuse the applicant the grant of a Partner (Temporary) (Class UK) visa.
The application included the applicant’s phone number, email address and residential address as required by r 2.16(d) of the Federal Court Rules 2011 (Cth). No subsequent notice has been filed by the applicant to change any of those details. The applicant’s stated email address is the address at which he agreed to receive service.
The judgment of the Circuit Court is published as Ram v Minister for Immigration & Anor [2019] FCCA 3509.
On 27 February 2020, a registrar of the Court made timetabling orders preparing the matter for hearing. They included that the applicant file written submissions at least 10 business days before the final hearing. On 20 August 2021, the matter was docketed to me. I infer that the delay in it being docketed was due to the disruption of the work of the Court, particularly with regard to self-represented litigants, caused by the COVID-19 pandemic.
On 31 August 2021, my associate notified the parties by email that the matter had been docketed and asked them to indicate when in November 2021 they were not available for a hearing. The applicant did not respond to the email. Needless to say, it was sent to his email address as recorded in the application for an extension of time, as were the other emails to which I will shortly refer.
On 6 September 2021, my associate notified the parties by email that the matter would be heard today, that is to say, on 11 November 2021.
On 7 September 2021, the solicitor for the Minister sent a letter by express post to the applicant at his address recorded on the application notifying him of the listing and including the registrar’s orders of 27 February 2020. On 2 November 2021, a further letter was sent by the Minister’s solicitor to the applicant by both express post and email to his nominated addresses. That letter enclosed a sealed copy of the Minister’s written submissions and his authorities and further notified the applicant of the date and time the matter was listed for hearing.
On 3 November 2021 and 9 November 2021, the Minister’s solicitor attempted to contact the applicant on the phone number recorded in the application for an extension of time. On each occasion the call went directly to an automated message which stated that the number is not connected.
Yesterday my associate emailed the parties, including the applicant, with the link for the online hearing today.
The applicant has failed to file any submissions and he has failed to appear today. He has also failed to contact the solicitor for the Minister or the Court to indicate any difficulties he may have with appearing today or with the link to the online hearing. Indeed, there appears to have been no communication or contact from the applicant since he filed his application for an extension of time back in January 2020.
I am satisfied that the applicant has had proper notice of the hearing today, but he has failed to appear.
The Minister applies for the application for an extension of time to be dismissed with costs with reference to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That provision, when read with ss 25(2BA) and 25(2), provides that a single judge may make an order that an application for an extension of time within which to institute an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the application. Under that power, or otherwise the power the Court has under r 5.23 to dismiss a proceeding on default of a party, the Court can dismiss the application for an extension of time.
I make the following order:
(1)The application for an extension of time filed on 24 January 2020 be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 11 November 2021
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