SZWAX v Minister for Immigration and Border Protection
[2018] FCA 209
•22 February 2018
FEDERAL COURT OF AUSTRALIA
SZWAX v Minister for Immigration and Border Protection [2018] FCA 209
Appeal from: Application for an extension of time: SZWAX v Minister for Immigration [2016] FCCA 2156 File number: NSD 1454 of 2016 Judge: WHITE J Date of judgment: 22 February 2018 Catchwords: MIGRATION – application for an extension of time within which to appeal against a judgment of the Federal Circuit Court – Applicant did not attend hearing – application to dismiss proceeding under Federal Court Rules 2011 (Cth) r 35.33 – application dismissed. Legislation: Federal Court Rules 2011 (Cth) rr 35.14, 35.33 Cases cited: SZTAL v Minster for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556
SZTAL v Minster for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
Date of hearing: 22 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr K Eskerie Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1454 of 2016 BETWEEN: SZWAX
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
22 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The application for the extension of time is dismissed.
2.The Applicant is to pay the costs of the First Respondent of and incidental to the application, to be taxed in the absence of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
The Court was to hear this afternoon the Applicant’s application for an extension of time in which to appeal from the judgment of the Federal Circuit Court (the FCC) delivered on 8 August 2016 in SZWAX v Minister for Immigration [2016] FCCA 2156. By that judgment, the FCC dismissed an application for judicial review of a decision of the former Refugee Review Tribunal (the Tribunal) concerning the Applicant’s application for a protection visa.
The application for the extension of time was filed on 31 August 2016 and was initially listed for hearing in February 2017. However, that hearing was adjourned to a date after the determination of the appeal to the High Court of Australia from the decision of the Full Court of this Court in SZTAL v Minster for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556.
Following the decision of the High Court in SZTAL v Minster for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405, the Court listed the Applicant’s application for hearing today. It notified the parties of that listing by an email sent on Thursday, 28 December 2017. That email informed both parties that the application would be heard today at 2.15 pm, with an expected duration of about one hour. The email also gave the Court’s address. The email was sent, relevantly, to the Applicant at the email address which he had provided on his application for an extension of time.
The Applicant did not appear today at 2.15 pm. The Minister applied to have the proceeding dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) (the FCR) by reason of the Applicant’s non‑attendance. After hearing submissions from the Minister’s counsel in support of his application, I adjourned the hearing to 4 pm, for reasons which will become apparent later in these reasons. However, the matter was called back on at about 3.40 pm, again for reasons which I will describe in a moment, and then further adjourned to 4 pm. The Applicant has not attended any of these hearings. In that circumstance, counsel for the Minister has renewed the application for the dismissal of the application.
Rule 35.33 provides that if an applicant is absent when an application under r 35.14 (the present application being of that kind) is called on for hearing, the other party may apply for an order that the application be dismissed. The Court’s power under r 35.33(1) is enlivened in the present case.
The question is whether the Court should exercise the discretionary power to dismiss the application in that circumstance. A number of matters bear upon the exercise of the discretion. They include the potential prejudice to the Applicant if, by no fault of his own, he has been unable to be here this afternoon; the prejudice to the Minister, the Minister being represented here today by counsel, ready to argue the matter and having provided a tender bundle and an outline of submissions; and the potential prejudice to the proper administration of justice. The third of these considerations involves consideration of two matters which may conflict, namely, the Court’s understanding that it would not be in the interests of the proper administration of justice to dismiss peremptorily an application by reason of the non‑attendance of an applicant who is absent through no personal fault, and the public interest in avoiding wastage of both the Respondent’s resources or the Court’s resources by reason of an applicant’s failure to attend a properly notified hearing.
In the present case, I am satisfied that the Applicant has had proper notice of this afternoon’s hearing. I have already referred to the notice sent by email by the court on 28 December 2017. I note that there is no indication on the Court file to the effect that that email was not received by each addressee. In other words, there is no evidence of any bounce-back. In addition to that, the Applicant has had a number of subsequent notifications.
Before listing those, I mention that the solicitors for the Minister received on 1 August 2017 an email from the Applicant informing them of a change in the Applicant’s physical address. The solicitors noted that this email had been sent from an email address which was different from that shown on the application for the extension of time (the second email address). The solicitors responded to the Applicant in August 2017, providing him with a copy of the form for provision of notice of an address for service and suggesting that he should file and serve a notice in accordance with those terms. The Applicant has not done so.
Mr Eskerie, who has appeared for the Minister today, has informed me, and I accept what he has told me, of numerous communications between the Minister’s solicitors and the Applicant. On 9 January 2018, the Minister’s solicitors sent by way of email a notification to the Applicant’s second email address informing him of the date, time and place of today’s hearing. On Thursday, 15 February 2018 (seven days ago), the Minister’s solicitors served on the Applicant at the physical address which he had notified on 1 August 2017, the Minister’s submissions and the Minister’s list of authorities, and confirmed with him in writing that today’s hearing would take place at 2.15 pm. In addition, the Minister’s solicitors forewarned the Applicant that at the hearing they would be seeking the dismissal of his application.
In preparing for today’s hearing, the Minister’s solicitors noted that they had not prepared or served a tender bundle. Accordingly, yesterday the solicitors prepared urgently a tender bundle and sent a copy by email to both of the Applicant’s known email addresses. They confirmed in the covering email the date, time and place of today’s hearing.
In addition, a staff member in the Minister’s solicitors’ office telephoned the Applicant twice on the afternoon of 21 February 2018. The first telephone call was not answered but it went through to voicemail. The solicitor left a message identifying himself and pointing out to the Applicant that he had sent an email attaching the tender bundle. He also left his own contact number for the Applicant to contact him with any questions. Later yesterday afternoon, the solicitor telephoned the Applicant again. He spoke to a person identifying himself as the Applicant and confirmed that the solicitors had sent the tender bundle. The Applicant responded by saying that he had not yet read that bundle. The solicitor confirmed with the Applicant that his application was listed for hearing today at 2.15 pm and recorded the Applicant’s response as indicating that he understood what had just been conveyed.
Mr Eskerie telephoned the Applicant just before 2 pm today. He spoke to the Applicant with the assistance of the interpreter whom the Court had arranged to assist the Applicant in this afternoon’s hearing. In that conversation, the Applicant denied awareness of this afternoon’s hearing and, as I understand it, also denied that he had spoken to the staff member from the solicitor’s office the previous afternoon. Mr Eskerie informed the Applicant that he should commence making his way to the Court as soon as practicable, and the Applicant responded by saying it would take him approximately an hour and a half to get to the Court.
I accept Mr Eskerie’s account of the events which occurred and, in any event, he has tendered the file notes relating to the two telephone calls made by his staff member. Those file notes record in substance the matters which I have already recounted.
In summary, I am satisfied that the Applicant has had notice of this afternoon’s hearing at one or more of the contact addresses which he himself has provided, as follows:
(a)the Court’s email 28 December 2017;
(b)the Minister’s solicitor’s email of 9 January 2018;
(c)the letter from the Minister’s solicitors of 15 February 2018; and
(d)the email from the Minister’s solicitors of 21 February 2018.
In addition, he has had information about it from the staff member in the Minister’s solicitors’ office, to which I have referred already.
In those circumstances, I am satisfied that the Applicant has had proper notice of this afternoon’s hearing.
I record that the Applicant has not himself made any contact with the Court in relation to the hearing. He has not filed an outline of submissions, but perhaps more significantly, he has not, despite the repeated reminders about this afternoon’s hearing, made any contact with the Court to explain his non-attendance or to indicate a reason for his not appearing.
As noted earlier, after hearing from Mr Eskerie at 2.15 pm, I stood the matter down to 4 pm, so as to give the Applicant the opportunity to get here if, in fact, he was acting on the advice which Mr Eskerie had given him. I asked Mr Eskerie to inform the Applicant of the Court’s expectation that he should attend at that time.
I called the matter back on at about 3.40 pm at the request of Mr Eskerie, who then informed me that, despite repeated attempts by him to contact the Applicant on his mobile phone number, he had not been able to do so, with all his calls going through to message bank. As I understand it, in at least some, if not all, of those telephone calls Mr Eskerie informed the Applicant of the Court’s adjournment to 4 pm.
Mr Eskerie made an application at the hearing at 3.40 pm for the application to be dismissed by reason of the Applicant’s non‑attendance. I did not accede to that application and adjourned the matter to 4 pm because of the possibility that the Applicant may indeed be on his way here, pursuant to the advice and information which he had received from Mr Eskerie.
The time is now just on 4.30 pm and the Applicant is still not here. For the reasons I have just given, I am satisfied, as I have said, that the Applicant has had proper notice of this afternoon’s hearing and he has been allowed sufficient time this afternoon to get here after his telephone call with Mr Eskerie just before 2 pm. Those matters all point in favour of the exercise of a discretion to dismiss the application.
Another matter which does bear upon the exercise of the discretion is, as I mentioned earlier, the potential prejudice to the Applicant if, through no fault of his own, he is denied the opportunity to present a reasonably arguable case for an extension of time. I do not intend to express any concluded view about the matters upon which the Applicant relies for his application. However, at this stage, and I emphasise that this is a preliminary view only without having heard from the Applicant, it is not immediately apparent that any of his proposed grounds of appeal have reasonable prospects of success. If I had been satisfied that at least one of the grounds appeared on its face to have reasonable prospects of success, my attitude may well have been different, but I take into account that it is not, as I say, immediately apparent that there is any one ground that can be characterised in that way.
In summary, the Applicant has been properly notified of this afternoon’s hearing, and he has had a reasonable opportunity in which to get to the Court, or at least to notify the Court if there was some inability on his part to do so. There would be prejudice to the Minister, if the matter was not dismissed and the Minister had to come to Court on yet another occasion to deal with this application. In addition, there is the interests of the proper administration of justice to which I referred earlier.
In all the circumstances, I am satisfied that it is appropriate to exercise the discretion pursuant to r 35.33(1). Accordingly, there will be an order that the application for the extension of time be dismissed by reason of the non-attendance of the Applicant.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 1 March 2018
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