SZOVO v Minister For Immigration and Anor (No.2)
[2017] FCCA 2410
•25 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZOVO v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 2410 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal affirming a decision not to grant the Applicant a Bridging visa and also seeking review of other asserted decisions of delegates of the First Respondent – where various preliminary matters raised by the parties were listed for hearing – non-appearance by Applicant – application dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 |
| Applicant: | SZOVO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 315 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2017 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondents: | Mr Bevan |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
There being no appearance by the Applicant the application of 1 February 2017 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules 2011 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 315 of 2017
| SZOVO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter commenced by application filed on 1 February 2017. The Applicant sought review of various “decisions”, including a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the First Respondent not to grant him a Bridging visa and interlocutory orders. The matter has had a somewhat complicated history, by reason of the need to deal with a number of preliminary matters prior to any final hearing, as discussed in my decision in SZOVO v Minister for Immigration and Border Protection [2017] FCCA 1652.
The Applicant is in detention on Christmas Island and has previously participated in a directions hearing and an interlocutory hearing by way of video link.
The Applicant did not appear on 19 July 2017 when I delivered judgment in SZOVO, despite having been notified of the listing by the Court and despite a link being made to the detention centre. The Serco officer in attendance indicated that the Applicant was not willing to appear. However, on that occasion I made directions to progress the matter.
Relevantly, I adjourned the matter to 9 August 2017 for determination of issues as to the jurisdiction of the Court to deal with various matters raised by the Applicant and the First Respondent’s objection to a subpoena issued by the Applicant and made orders for the parties to file written submissions.
The evening before the scheduled hearing of 9 August 2017 the Applicant sought an adjournment on the basis that he had approached the New South Wales Bar Association for legal assistance through the Legal Assistance Referral Scheme. He was granted an adjournment. The matter was listed for hearing of the matters described above at 2:15pm today.
This morning the Registry informed my chambers by email that the Applicant had telephoned the registry at 4:40am Eastern Standard Time and advised that he sought an adjournment, as he said he was under the belief that I had “conflicting interests in the mentioned case”. He was informed by the Registry by email that an adjournment had not been granted and that I would deal with any application he wished to raise at the hearing today.
Later this morning the Court received an email from a departmental officer at the Christmas Island detention centre advising that the Applicant had indicated that he declined to participate in the hearing. This advice was acknowledged by an email from my chambers which advised the departmental officer that the scheduled video link would go ahead, that it was important that the Applicant be informed that I would hear any foreshadowed application for me to recuse myself from hearing his matter and also that, if he did not appear, his application may be dismissed for non-appearance.
This afternoon, at the time listed for the hearing, when a link was organised to Christmas Island, I was advised by the departmental officer that the Applicant had again indicated that he was not willing to participate and that he was not present in the allocated room in the detention centre for a video link hearing. I stood the matter down for 15 minutes to give the Applicant a final opportunity to appear and asked that he be notified again that he needed to appear and that if he did not do so, his application may be dismissed for non-appearance.
At 2:30pm the officer informed me by telephone link that the Applicant still declined to take part in a video link and had indicated that if his application was dismissed, he would appeal. The officer advised that he would immediately inform the Court if the Applicant did seek to appear today. There has been no such notification as at 2:40pm.
In these circumstances, the Minister seeks that the application filed on 1 February 2017 be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).
In support of that application reliance is placed on the affidavit of Kim Mai Nguyen affirmed on 8 August 2017 attesting to the fact that on 4 August 2017 the Minister’s solicitors wrote to the Applicant, both by letter and by email, reminding him that the matter was listed for hearing on 9 August 2017. As indicated, this was the original date for hearing the part of the matter that was later listed for hearing today. Relevantly, the letter and email both advised that if the Applicant did not attend on 9 August 2017, the solicitors for the First Respondent may seek to have the matter dismissed (with costs) for non-appearance.
In addition, after the adjournment of 9 August 2017 to 25 September 2017, the solicitors for the Minister wrote to the Applicant by letter and email of 23 August 2017, noting that the matter had been relisted today at 2:15pm and informing him that if he did not attend today, they may seek to have the matter dismissed (with costs) for non-appearance.
On the evidence before the Court, the Applicant has been put on notice by the solicitors for the First Respondent by both post and email, both prior to the hearing of 9 August 2017 (the original scheduled hearing date) and also prior to the scheduled hearing today, of the possibility that if he did not appear they may seek to have the matter dismissed for non-appearance. In addition, as indicated, the Court today made such efforts as it could through the officers at the Christmas Island detention centre to ensure that this possibility was again brought to the Applicant’s attention.
The Applicant has not appeared. In these circumstances, it is appropriate to consider the application for non-dismissal.
Before addressing that application, I note that while the Applicant sought an adjournment in his overnight telephone call to the Registry, he appears to have foreshadowed, albeit in lay terms, that he might ask me to recuse myself. I have considered whether it is appropriate to decline to sit (bearing in mind the discussion in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [19]-[21] per Gleeson CJ, McHugh, Gummow and Hayne JJ).
I bear in mind that the Applicant has had the opportunity to come to court today to ask me to recuse myself, if that is what he intended. I also bear in mind that such an application is a serious application. It should be supported by evidence and identify what it is that it is said might lead me to decide the case other than on its merits and articulate the logical connection between the matter of concern and the feared deviation from a course of deciding a case on its merits (see Ebner and ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36]). I bear in mind that if it was intended to allege actual bias, that is a serious allegation that must be distinctly made and clearly proved. That has not occurred.
I also note, insofar as the Applicant may be concerned about the interlocutory judgment that I delivered in SZOVO or with any past orders I have made, the remarks of Bromberg J in Szepesvary v Weston [2016] FCA 1464 at [14]-[19].
I am not satisfied that the “insubstantial” (see Ebner at [20]) and unexplained objection reportedly raised by the Applicant provides a basis on which I should decline to hear the case today.
The Applicant has chosen not to participate in the hearing today, despite being on notice of the possibility of dismissal for non-appearance and the opportunities given to him to participate. In these circumstances it is appropriate to dismiss the matter for non-appearance.
The Minister seeks costs as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules 2011 (Cth). In this particular matter, I consider it appropriate to make such an order.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 3 October 2017
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