Ali v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal be dismissed.
2. The applicant pay the first respondent's costs of the application, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an application for an extension of time and leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 22 November 2018. That judgment, bearing the citation Ali v Minister for Immigration & Anor [2018] FCCA 3461, dismissed an application to reinstate the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal made on 9 May 2017. The primary judge had earlier dismissed the proceeding under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 when the applicant failed to attend a hearing on 3 September 2018. 2 The Tribunal's decision of 9 May 2017, which was made under s 362B(1E) of the Migration Act 1958 (Cth), had confirmed the Tribunal's previous decision to dismiss the applicant's application for review of a decision to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa. On 10 April 2017, the Tribunal had dismissed the applicant's application under s 362B(1A)(b) on the basis of the applicant's non-appearance before the Tribunal. 3 The applicant requires leave to appeal as the judgment he wishes to challenge is interlocutory: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be filed within 14 days of the judgment sought to be appealed: see Federal Court Rules 2011 (Cth) r 35.13. The applicant filed an application for an extension of time for leave to appeal on 7 January 2019, which was 32 days out of time. He, therefore, requires an extension of time in which to seek leave to appeal. 4 The respondent Minister appeared by counsel at the hearing today. The applicant, having been called, has not appeared at the hearing. The Minister has applied for the appeal to be dismissed on the basis that the applicant has failed to appear, in exercise of the power in either r 35.33 of the Federal Court Rules or s 25(2B)(bb)(ii) of the Federal Court of Australia Act. This latter provision empowers a single judge to make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal. 5 While s 25(2B)(bb)(ii) refers in its terms only to the dismissal of an appeal, s 25(2BA) of that Act provides that in s 25(2B) a reference to an appeal includes a reference to an application of the kind mentioned in s 25(2). Section 25(2) refers to applications for an extension of time and for leave to appeal. Section 25(2B)(bb)(ii) therefore would apply in the present case, as would r 35.33 of the Federal Court Rules. 6 In the circumstances of this case, it seems to me that it would be most appropriate to dismiss the application for an extension of time and leave to appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act, having regard to the fact that the applicant did not appear at the hearing today and the following facts. 7 First, the applicant has been given adequate notice that his application was to be heard today. On 6 February 2019, Registrar McCormick made directions for the hearing and conduct of this application, including that the lawyers for the Minister notify each other party in writing of the date to be fixed by the Court for the hearing of the application. 8 Leaving aside earlier items of correspondence, I note that on 24 July 2019 and 30 July 2019, Chambers notified the applicant via email that his hearing had been listed for 5 December 2019 at 10:15 am. The latter email had a letter attached to it, which was also sent by post on 30 July 2019 to the street address provided by the applicant. This letter stated that it was important that the applicant attend his hearing, and that if he did not do so, the Court might proceed in his absence. In an email sent to Chambers on 30 July 2019 the applicant confirmed receipt of the emails sent on 24 and 30 July 2019. 9 On 1 November 2019, Chambers staff sent the applicant an email proposing that his hearing would be re-listed for today, 24 February 2020. On 7 November 2019, Chambers staff sent the applicant an email stating that his hearing had been re-listed for the new date. On the same day, the applicant confirmed receipt of the email sent on 7 November 2019. On 12 December 2019, Chambers staff sent the applicant an email reminding him that his hearing on 24 February 2020 would be proceeding, that it was important he attend, and that if he did not attend, the Court may proceed in his absence. 10 On 14 February 2020, Chambers staff sent the applicant a further email reminding him that his hearing was today, 24 February 2020 at 10:15 am; that it was important he attend his hearing, and that if he did not attend, the Court might proceed in his absence. A letter was also sent to the street address provided by the applicant on 17 February 2020 repeating these matters. 11 The Minister has also advised the applicant of the hearing today. In serving on the applicant his submissions dated 14 February 2020, the Minister advised, in paragraph 2 of those submissions, that this application had been listed for hearing at 10.15 am on 24 February 2020. In a covering letter also dated 14 February 2020, the Minister's lawyers advised: We refer to the above matter and enclose by way of service the first respondent's submissions dated 14 February 2020 as filed in the Federal Court. Please contact [the named author] if you have any queries. 12 The Court has not received any further communication from the applicant, and the applicant has not attended today. In the circumstances I have outlined, I would dismiss the application as the Minister has sought. I am fortified in my view that this is the appropriate order to make by the apparent lack of merits in the present application, and I propose to explain hereafter my reasons for arriving at this view.