Wekerle v Department of Home Affairs (No 2)
[2021] FCA 173
•3 March 2021
FEDERAL COURT OF AUSTRALIA
Wekerle v Department of Home Affairs (No 2) [2021] FCA 173
Review of: Wekerle and Minister for Home Affairs [2019] AATA 630 File number: WAD 326 of 2019 Judgment of: BANKS-SMITH J Date of judgment: 3 March 2021 Catchwords: MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal - failure to appear by
applicant - application dismissedLegislation: Migration Act 1958 (Cth) s 501
Federal Court Rules 2011 (Cth) rr 5.22, 5.23
Cases cited: Wekerle v Department of Home Affairs [2020] FCA 1300 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 3 March 2021 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Ms SJ Oliver 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
WAD 326 of 2019 BETWEEN: KOLI WEKERLE
Applicant
AND: DEPARTMENT OF HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
3 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the costs of the first respondent to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
The applicant was born in Samoa and is a citizen of New Zealand. At the age of 15 the applicant moved to Australia in 2012 with his adoptive parents. The applicant held a Class TY Subclass 444 Special Category (Temporary) Visa which permitted him to remain in Australia while a New Zealand citizen.
At a time when he was serving a term of imprisonment, the applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). A delegate of the Minister decided not to revoke the cancellation of the applicant's visa.
The applicant applied to the Administrative Appeals Tribunal for review of the non‑revocation decision but the Tribunal affirmed the delegate's decision not to revoke the cancellation of the applicant's visa.
Since the Tribunal's decision, the applicant has returned to New Zealand.
The applicant sought an extension of time in this Court to seek judicial review of the Tribunal's decision. He participated in the online hearing by MS Teams and I granted that extension: Wekerle v Department of Home Affairs [2020] FCA 1300.
I also authorised the issue of a certificate under r 4.12 of the Federal Court Rules 2011 (Cth), appointing pro bono solicitors and counsel but those services have been withdrawn, and the Court has received appropriate communications in that regard. The former pro bono solicitor confirmed in his communications to the Court on 15 February 2021 that he had a detailed conversation with the applicant concerning his decision to withdraw. I am satisfied that the applicant is on notice that he no longer has legal representation.
Whilst on the record, the pro bono lawyers filed an amended originating application. No other documents have been filed on behalf of the applicant. The applicant has not provided any written submissions in accordance with directions made by the Court. The Minister filed further evidence and submissions and his solicitors have sent both by email to the applicant's known email address.
The applicant has not appeared today despite having been informed of the hearing. Attempts made before and during the hearing to telephone him were unsuccessful.
The applicant's former pro bono solicitor was informed on 14 October 2020 of today's hearing date. That date was reiterated in subsequent emails to the applicant from Chambers (relevantly, on 22 February 2021 and 24 February 2021). Instructions were provided for the applicant to participate in the online hearing by MS Teams, although it was also foreshadowed that it could proceed by telephone, the intent being to offer such option to the applicant. However nothing further was heard from the applicant.
There have been a number of attempts made by Chambers and the Registry to contact the applicant by telephone and email with respect to today's hearing. There has been no indication that the emails were not successfully transmitted. A Registry officer attempted to telephone the applicant on a number of occasions, having regard to the time zone differences, on 22 February 2021 and 23 February 2021.
The email communications have been directed to email addresses provided by the applicant. One of those email addresses was confirmed as accurate on 15 February 2021 by the applicant's former pro bono solicitors. The mobile phone number that has been called is also a number confirmed on 15 February 2021 as the applicant's contact phone number.
The Minister's solicitors have also attempted to contact the applicant without response. I was told by counsel for the Minister that by email dated 1 March 2021, the Minister's solicitors informed the applicant that in the absence of his attendance at the hearing, the Court would be asked to dismiss the application and the Minister would seek costs.
In those circumstances, the Minister has sought that I exercise the power under r 5.22(c) and r 5.23(1)(b)(i) of the Federal Court Rules to dismiss the application because of the applicant's non‑appearance.
Having regard to the circumstance set out above, it appears to me that the applicant has had every opportunity to pursue his application and he has chosen not to do so.
Therefore, whilst I am conscious of the significance of the order sought by the Minister, I consider it appropriate in the circumstances to dismiss the application. There will be an order that the applicant pay the first respondent's costs to be assessed if not agreed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 3 March 2021
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