AXD15 v Federal Circuit Court of Australia

1. The application be dismissed under r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2. The applicant is to pay the second respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 The applicant is a citizen of Egypt. He first entered Australia in 2007 as the holder of a subclass 572 Vocational Education and Training Sector Visa. He was granted a protection visa on 4 July 2011, having applied earlier on 14 March 2011. The protection visa was cancelled by a delegate of the Minister under s 109 of the Migration Act 1958 (Cth) (the Act) on 28 January 2015. Subsequently the (then) Refugee Review Tribunal affirmed that decision on 28 April 2015. 2 The Tribunal's decision was challenged by the applicant unsuccessfully at first instance in the Federal Circuit Court of Australia (FCC) and on appeal in the Federal Court of Australia. An application for special leave to appeal to the High Court of Australia was subsequently filed, then discontinued. 3 On 3 February 2017, the applicant purported to lodge a further application for a protection visa but was informed by a Departmental officer that the application was invalid pursuant to s 48A of the Act. 4 The applicant then applied to the FCC for an extension of time pursuant to s 477(2) of the Act within which to file and serve an application under s 476 of the Act for judicial review of the Departmental officer's decision given on 3 February 2017. In his proposed application in the FCC, the applicant contended that s 48A of the Act does not apply to his second protection visa application. However, the applicant, who was represented by a solicitor and counsel in the FCC, accepted before the FCC that his application was "bound to fail" given the judgment of Burley J in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 which is binding on the FCC. That said, the applicant's legal representatives apparently also submitted that it was open to the FCC to stand over the previous proceeding until after the Full Court of the Federal Court had had the opportunity to consider the correctness of that decision in another proceeding. By a decision given ex tempore on 20 July 2018, the FCC refused the application for an extension of time under s 477 of the Act. 5 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the FCC given on 20 July 2018. The application for judicial review seeks orders quashing the FCC judgment for jurisdictional error, being legal unreasonableness in refusing the further amended application for an extension of time, and mandamus requiring the FCC to determine the further amended application for an extension of time dated 20 July 2018 according to law. 6 The application for judicial review of the FCC decision was called on for hearing before me on 1 April 2019 at approximately 10.18am. The applicant did not appear. The matter was called outside the courtroom three times and there was still no appearance for the applicant. 7 In the circumstances I stood the matter down to allow further enquiries to be made of Registry as to any contact by the applicant and in case the applicant was delayed. When the hearing resumed at approximately 10.35am, the Minister applied for the application to be dismissed under rule 30.21(1)(a)(i) of the Federal Court Rules (Cth) (the Rules) for non-appearance and made brief oral submissions in support of that application. The Minister also tendered a letter dated 22 March 2019 from the Australian Government Solicitor, who act for the Minister, to the applicant advising of the hearing and, as I later explain, of the consequences of non-attendance. 8 Rule 30.21(1)(a)(i) provides: (1) If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed; … 9 I agree that the application should be dismissed under r 30.21(1)(a)(i) by reason of the applicant's failure to attend when the application was called on today. In reaching this view, I have had regard to a number of factors in addition to the applicant's failure to attend. (1) I note that the proceedings were instituted on 1 November 2018 when the applicant was represented by a firm of solicitors. (2) The applicant did not file any written submissions in support of his application despite orders made by me by consent in chambers on 19 December 2018 setting down a timetable and listing the matter for hearing at 10.15am on 1 April 2019. I note that it can reasonably be inferred that the solicitors would have endeavoured to contact the applicant to advise him of the orders made on 19 December 2018 and in particular of the listing date and time. The timetabling orders required the applicant to file and serve any amended application on which he wished to rely on or before 25 January 2019, together with any further affidavit evidence, and that he file and serve his written submissions no later than 14 days prior to the hearing date, i.e., 18 March 2019. No documents have been filed by the applicant in accordance with those orders. (3) On 13 March 2019 at 3.47pm, a notice of intention to cease to act was filed by the applicant's then solicitors stating relevantly that: "You must, within 5 days after that notice has been filed, file in the Registry a notice of address for service". The Court file reveals that no such notice has been filed. (4) On 22 March 2019 at 12.51pm, a notice of ceasing to act (the notice) was filed by the applicant's former solicitors, providing what is described in the notice as the "last known residential … address" of the applicant. Also on 22 March 2019, the Minister filed written submissions which were originally forwarded to the applicant's former solicitors, but then, upon the second respondent's solicitors receiving the notice, were forwarded to the address provided by the applicant's solicitors as his last known residential address in the notice. The covering letter to the applicant dated 22 March 2019 noted that his former solicitors had filed a notice of ceasing to act, and reminded the applicant of the hearing on 1 April 2019 at 10.15am and where the hearing was to take place. The letter further expressly put the applicant on notice that "should you or a lawyer … fail to appear on the above date, orders may be sought that your application be dismissed with costs, without further notice." (5) On 27 March 2019 at 10.29am, my Associate sent an email to the solicitors for the Minister noting that the Court may not have on file necessary details for contacting the applicant, and requesting that the Minister attempt to ascertain contact details and make arrangements to notify the applicant of the hearing date and provide documents. Also on 27 March 2019 at 1.16pm, an email was sent from the Minister's solicitors to my Associate stating that documents dating back to February 2017 had been examined, noting that the applicant's residential address was the same as that provided on the notice, and providing an email address and mobile telephone number. Those contact details were apparently obtained from the applicant's application for a protection visa purportedly lodged by him on 6 February 2017, which was in evidence before the FCC. (6) On 27 March 2019 at 3.34pm, an email was sent from the NSW Registry of the Federal Court to the email address provided by the Minister's solicitors giving notification of the hearing today; advising that an attempt had been made to call the mobile telephone number also provided by the Minister's solicitors but that the number was apparently disconnected; and stating that "[a] copy of this email will be mailed to your current address by Express Post". It is apparent from the tracking history on the Court file that a copy of the email was in fact sent by express post to the relevant address, and that it was delivered to that address at 9.16am on Thursday 28 March 2019. I also note that the email address provided a telephone number as well as an email address at which the Registry could be contacted by the applicant. The email from the Registry also requested confirmation of receipt of the message by the applicant, but no such confirmation has been received. (7) As earlier mentioned, when the matter was called on for hearing on 1 April 2019, I stood the Court down for 15 minutes in order to allow the applicant additional time in case he was having difficulty locating the courtroom or had otherwise been delayed. The Court Officer also called the Registry to confirm that the applicant had not attended there or otherwise contacted the Registry this morning regarding the hearing. The Registry confirmed that the applicant had not attended or otherwise sought to contact them. 10 In these circumstances, I am satisfied, as the Minister submitted, that all reasonable efforts have been undertaken to ensure that the applicant is aware of the hearing today and that he has been afforded a reasonable opportunity to appear or to contact the Registry and/or the Minister's solicitors if he was unable to do so. I am also satisfied that all reasonable attempts have been made to advise the applicant of the potential consequences in the event that he did not appear. 11 Finally, I have had regard to the entitlement of the applicant to apply to set aside the order made today under r 31.21(2) of the Rules. Whether or not any such application succeeded would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the applicant's failure to attend the hearing today and the strength of his case on the application if the order dismissing his application were to be set aside. 12 For these reasons, I consider that the application should be dismissed under r 30.21(1)(a)(i) of the Federal Court Rules with the applicant to pay the Minister's costs as agreed or assessed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.