SZLLC v Minister for Immigration

[2017] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLLC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 740

Catchwords:
MIGRATION – Non-appearance by the applicant – first respondent moved for the proceedings to be dismissed pursuant to r.13.03C(1)(c) – belated request for adjournment of proceedings by consent orders – the applicant signing the proposed consent orders is not an adequate explanation for the failure of the applicant to appear before the Court today – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), s.438

Cases cited:

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Uddin v Minister for Immigration & Anor [2017] FCCA 500

Applicant: SZLLC & ANOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2579 of 2016

Judgment of: Judge Street

Hearing date: 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Sydney

Delivered on: 12 April 2017

REPRESENTATION

No appearance by the Applicants.

Solicitors for the Respondents:

Mr L Dennis

Minter Ellison Lawyers

ORDERS

1. The application in a case filed on 22 February 2017 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicants pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2579 of 2016

SZLLC & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case that was filed on 22 February 2017 seeking to have set aside orders made by a registrar on 19 January 2017 dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. For reasons given by this Court in Uddin v Minister for Immigration & Anor [2017] FCCA 500, the Registrar had the power to make that order subject to the right of review by this Court.

3. On 23 February 2017, this Court made orders fixing the matter for hearing at 2.15 pm today. The matter has been called outside the Court and the applicant has not appeared. Prior to today, steps were taken by the first respondent to endeavour to obtain consent for the adjournment of the proceedings by the applicant in circumstances where it was identified there is an issue in respect of a certificate given to the Tribunal under s.438 of the Migration Act 1958 (Cth) (“the Act”).

4. That certificate in the court book made a generalised reference to folios. However, this was a decision by the Tribunal made on 18 August 2016 in circumstances where the applicant failed to engage and failed to attend the hearing which the applicant was invited to appear.

5. The Court has before it an affidavit from the solicitor for the first respondent that identifies the material the subject of the s.438 certificate. It is apparent that that material could not possibly have had an impact on the outcome of the review and was not referred to by the Tribunal in its reasons.

6. This Court has had approximately 40 adjournments by consent as a result of consent orders sent to the Court, purportedly by reason of matters involving the decision of the Full Federal Court of Australia in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, which has been the subject of an application for special leave to the High Court of Australia.

7. The belated adjournment of proceedings that are fixed for hearing creates enormous inconvenience for the Court and it is generally impracticable to utilise the Court time that was allocated for the hearing of matters where belated adjournments occur.

8. In the present case, it appears that either today or yesterday the applicant decided to sign proposed consent orders, which were forwarded to the Court today. It is the Court, not parties that make orders. It is the Court, not parties, that determines whether or not proceedings will be adjourned. The applicant signing the proposed consent orders is not an adequate explanation for the failure of the applicant to appear before the Court today. 

9. More importantly, it is apparent from the material already filed that no email address has been provided by the applicant to the Court. The Court is satisfied that the applicant was well aware of the hearing date today.  The signing of proposed consent orders by the applicant is not a proper explanation for the applicant’s failure to appear before the Court today.

10. The first respondent has moved under r.13.03(1)(c) of the Federal Circuit Court Rules 2001 for the proceedings to be dismissed. The first respondent has tendered a letter dated 10 April 2017 which put the applicant on notice that if he failed to appear, the first respondent would move for the matter to be dismissed pursuant to the said Rule. 

11. This is a matter where because of the belated timing in relation to the proposed consent orders, the Court remained in a position where it had to be satisfied that it was appropriate to make consent orders. The applicant has deliberately failed to appear before the Court in that regard. 

12. In considering whether the proposed consent orders would be appropriate, the Court would have to take into account the material in the affidavit of Jennifer Louise Strugnell in relation to the s.438 certificate, which appears to have been the only ground upon which an adjournment was sought. That affidavit does not support a proper basis for an adjournment in the interests of the administration of justice.

13. I am satisfied that this is an appropriate matter in which to exercise the court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

Conclusion

1. The application in a case is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 April 2017