Sainz v Minister for Immigration and Border Protection

[2017] FCA 814

FEDERAL COURT OF AUSTRALIA

Sainz v Minister for Immigration and Border Protection [2017] FCA 814

File number:

QUD 298 of 2017

Judge:

COLLIER J

Date of judgment:

19 July 2017

Catchwords:

PRACTICE AND PROCEDURE – where matter listed for first case management hearing – where applicant departed Australia – where no communication from applicant to respondent or Court – where applicant failed to appear – application dismissed  

Legislation:

Migration Act 1958 (Cth) ss 501, 501(3A)

Federal Court Rules 2011 (Cth) rr 5.22(c), 5.23(1)(b)(i)

Cases cited:

Abolail v Minister for Immigration and Border Protection [2017] FCA 606

AEJ15 v Minister for Immigration and Border Protection [2015] FCA 1216

Date of hearing:

18 July 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

The Applicant did not appear

Solicitor for the Respondent:

Ms C McConnel of Clayton Utz

ORDERS

QUD 298 of 2017

BETWEEN:

IVAN SAINZ

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	18 JULY 2017

THE COURT ORDERS THAT:

1.Under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth), the whole of the proceeding is dismissed.

2.The applicant pay the respondent’s costs of the proceeding, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1. The applicant, Mr Sainz, is a citizen of Spain, who until recently held a Class BF transitional (permanent) visa under the Migration Act 1958 (Cth) (the Migration Act). A delegate of the Assistant Minister for Immigration and Border Protection (the Minister) cancelled the visa under s 501(3A) of the Migration Act, a mandatory cancellation provision for persons serving a sentence of imprisonment. The Minister refused to revoke the cancellation on the grounds that Mr Sainz did not pass the character test as defined by s 501 of the Migration Act and he was not satisfied there was another reason why the original decision should be revoked. The application for judicial review of the decision of the Minister was transferred to this Court by an order of the Federal Circuit Court on 13 June 2017.

2. The first case management hearing in this Court was listed for 18 July 2017. At this hearing the applicant failed to appear. The matter was called outside court, but there was still no appearance by the applicant.

3. The Minister was represented by Ms Caitlin McConnel of Clayton Utz. Ms McConnel moved for an order of the Court dismissing the application pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). Rule 5.23 (1)(b)(i) relevantly provides:

   (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

   …

4. The default in this matter was the applicant’s failure to attend a hearing in the proceedings (r 5.22(c) of the Federal Court Rules).

5. In seeking orders to have the proceeding dismissed, the Minister relied on Ms McConnel’s affidavit filed 17 July 2017.

6. The affidavit attached a copy of the applicant’s signed “Request for Removal from Australia” dated 15 June 2017. I note that on this form, the applicant circled “Yes” in response to the statement:

   If I have outstanding visa applications, requests or legal proceedings, I understand, that if I choose not to withdraw them, consideration of my claims may be dismissed by the department or relevant review bodies (including the courts) once I am removed from Australia.

7. The affidavit also attached an email from the Department of Immigration and Border Protection advising that the applicant had departed Australia on 28 June 2017.

8. On the court file is a copy of a letter, addressed to the applicant care of a post office box on Christmas Island and dated 19 June 2017, from the Queensland Federal Court Registry advising the applicant of the listing date and time.

9. My Associate sent an email to the parties on 13 July 2017 requesting draft orders. The applicant’s postal and email addresses were retrieved from the originating application filed in the Federal Circuit Court proceeding. No response was received from the applicant.

10. In her affidavit, Ms McConnel deposed that she similarly sent emails to the applicant on 21 June 2017, 3 July 2017 and 16 July 2017, noting the listing on 18 July 2017. In her emails Ms McConnel noted, inter alia, that the applicant had departed Australia, and asked whether the applicant intended to continue proceedings before this Court. These emails are annexed to the affidavit. In the email of 16 July 2017, Ms McConnel advised the applicant that if he failed to appear at the first case management hearing, the Minister would seek to have the proceedings dismissed for want of prosecution. No response was received from the applicant.

11. I am satisfied that the appropriate steps were taken to inform the applicant of the listing. No explanation has been provided by the applicant for his failure to attend the case management hearing, and no other communication has been received by the Court from the applicant.

12. It is not uncommon for the applicant in migration matters to depart Australia while their application for review or appeal is on foot. The Court has dismissed matters such as these, where the applicant departed Australia, and made no further contact with the Court or the respondent, using similar provisions of the Federal Court Rules which relate to a failure to appear at an appeal or trial (see, for example, Abolail v Minister for Immigration and Border Protection [2017] FCA 606; AEJ15 v Minister for Immigration and Border Protection [2015] FCA 1216).

13. It is perhaps more unusual that a matter be dismissed at a first case management hearing. However, in these circumstances, I am satisfied that the applicant’s failure to attend, either by telephone or videoconference, the absence of any communication from the applicant to the respondent or the Court, and the applicant’s departure from Australia are all indicative of his abandonment of these proceedings. In my view it is appropriate that the proceedings be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        19 July 2017