SHI v Minister for Immigration

[2020] FCCA 188

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 188

Catchwords:
MIGRATION – Failure of applicant to particularise grounds for review – absence of applicant at directions hearings – orders made for particularisation of grounds for review – direction that Registrar have powers of the Federal Circuit Court to dismiss application for review if applicant fails to comply with court orders.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03A(1)(a), 13.03B(1)(c), 21.02(2)

Federal Circuit Court Act 1999 (Cth), ss.102(2)(i), 102(2)(f)

Cases cited:

DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951

Applicant: SHUHONG SHI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 727 of 2019

Judgment of: Judge Egan

Hearing date: 29 January 2020

Date of Last Submission: 29 January 2020

Delivered at: Brisbane

Delivered on: 29 January 2020

REPRESENTATION

Applicant: No appearance

Solicitors for the First Respondent: Ms K. Reid of Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The hearing of this matter listed for 12 February 2020 be vacated.

2. By 4:00pm on 6 April 2020, the Applicant is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review.

3. By 4.00pm on 6 April 2020, the Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant to the grounds of review.

4. By 4.00pm on 13 April 2020, the First Respondent shall file and serve any affidavit containing any additional evidence upon which the First Respondent proposes to rely relevant to the grounds of review.

5. This matter be adjourned to the Registrar of the Federal Circuit Court of Australia at Brisbane, to a date to be fixed, for the purpose of the listing of the matter for directions concerning the Applicant’s compliance or noncompliance with Order 2 hereof relating to the ordered filing by the Applicant of an amended application containing detailed particulars of the grounds for review to be relied upon at the final hearing of the matter.

6. The First Respondent shall obtain a copy of the transcript of today’s proceedings and reasons, and forthwith provide a copy of such transcript and reasons to the Applicant.

7. In the event that the Applicant has failed to comply with Order 2 hereof, in breach of the provisions of Rule 13.03A(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Court directs, pursuant to the provisions of s.102(2)(i) and s.102(2)(f) of the Federal Circuit Court of Australia Act 1999 (Cth), that the Registrar have such powers of the Federal Circuit Court of Australia to dismiss the application pursuant to the provisions of Rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), and thereupon to make an order as to costs pursuant to the provisions of Rule 21.02(2) of the Federal Circuit Court Rules 2001 (Cth).

8. The costs of and incidental to the hearing today be reserved.

IT IS NOTED THAT:

A.It was made clear during the course of today’s hearing that the particulars of the Applicant’s grounds for review were deficient and inadequate. The Court, for the purposes of bringing to the attention of the Applicant the requirement to file and serve an amended application with detailed particulars, has today indicated that in the event that the Applicant fails to comply with Order 2 hereof requiring the particularisation of the Applicant’s claim, the Applicant is liable to have the application dismissed pursuant to the provisions of 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth), a copy of which rule is to be provided to the Applicant by the lawyers for the First Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 727 of 2019

SHUHONG SHI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for directions on 22 January 2020 for the purpose of addressing the lack of particularisation of the applicant’s application for review filed on 15 August 2019. The application for review contained the following ground for review, namely:

   “1. There is a jurisdictional error has been made while AAT made the decision on my application.”

2. The court recently addressed the question of non-particularisation by applicants of their claims for review in DUN16,[1] of which Ms Reid, who appears on behalf of the first respondent, is aware.

   [1]        DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor

3. When the matter was called on for hearing on 22 January 2020, there was no appearance on behalf of the applicant. It was the case that the applicant had indicated by email sent on 22 January 2020 at 11.37 am that she would be unable to attend court that day. She asked for an extension in such email. Attached to such email was a short medical certificate issued by one Dr Lo Tan Sim from the Sunnybank Medical Clinic dated 20 January 2020. Attached to that report was a CT scan purportedly undertaken in respect of the applicant dated 20 January 2020. Though it was recorded that a fracture had been identified through the base of the skull or the cranial vault, the conclusion to such CT scan was:

   “Unremarkable CT scan of the brain.  No acute intracranial pathology. A fracture is identified.”

4. That email, together with the attachments referred to, is marked as exhibit 1.

5. On 22 January 2020, it was ordered that the matter be relisted for directions before this court today. When the matter was called today by the associate three times, there was no appearance recorded by or on behalf of the applicant. Rather, an email had been received at the Queensland registry of this court at 3.15 pm on 28 January which – sent by the applicant which recorded the following:

   “Dear Officer,

   I am writing to ask for an extension for tomorrow’s hearing.

   Doctor suggested me to stay in bed to take a good rest for several weeks to check again. So sorry I won’t be able to make it.

   Thank you very much for your understanding.

   Shuhong”

6. That email was marked exhibit 2.

7. In circumstances where the medical certificate tendered for the court’s examination does not satisfactorily address the reason why the applicant might have been unable to appear at court either on 22 January 2020 or some later date, the court is not minded to continually grant the adjournments requested by the applicant. That is particularly so in circumstances where the intention of the court in listing the matter for directions was to regularise a procedural deficiency which was caused by the applicant failing to properly particularise her application for review at the time of filing of such application. In those circumstances, it is appropriate that the court makes orders with a view to progressing the matter to a final hearing.

8. The costs of and incidental to today’s hearing are reserved.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  3 February 2020

[2019] FCCA 2951.