AYE15 v Minister for Immigration and Border Protection

1. The appeal is dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2. Subject to order 3, the appellant is to pay the first respondent's costs as agreed or assessed, but in any event not to exceed the sum of $4,500.
3. There be no order as to the costs occasioned by and incidental to the adjournment of the hearing on 17 November 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 The appellant is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia (at Christmas Island) without a valid visa in July 2012, and applied to the Department of Immigration and Border Protection (the Department) for a protection visa in October 2012. He claimed to fear persecution if returned to Sri Lanka by reason of his political opinion and illegal departure from Sri Lanka. A delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to grant the visa on 20 March 2014. 2 The appellant applied to the then Refugee Review Tribunal (the Tribunal) for review of the delegate's decision on 26 March 2014. On 8 May 2015, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of the decision of the Tribunal. 3 By a notice of appeal filed on 16 June 2016, the appellant raises six grounds of appeal which can be summarised as follows: (1) The Tribunal acted without or in excess of jurisdiction in the form of identifying a wrong issue, asking a wrong question, relying on irrelevant material or ignoring relevant material, and the Federal Circuit Court failed to identify these jurisdictional errors (grounds 1 and 4); (2) There was a denial of procedural fairness in the Federal Circuit Court and a failure to determine that the appellant's interests were affected by the Tribunal's decision (ground 2); (3) The Tribunal breached s 424A of the Migration Act 1958 (Cth) (the Act) (ground 3); (4) The appellant was denied natural justice (ground 5); (5) The Tribunal failed to review and consider the appellant's application for a visa in accordance with the Act (ground 6). 4 No notice of acting has been filed by any legal representative for the appellant and as such, it appears he has not engaged legal representation. The appellant did not file any written submissions in advance of the appeal in accordance with the orders of the Registrar. The Minister filed submissions on 10 November 2016. 5 The appeal was called on for hearing on 17 November 2016 at 10.15am. The appellant did not appear. The matter was called outside the courtroom three times and there was still no appearance for the appellant. In the circumstances, I adjourned the court in order to allow the Court to contact the appellant to see whether he still intended to appear using the mobile telephone number which he provided on his notice of appeal. I note that that number is the same number which he also provided to the Federal Circuit Court. I was advised by the interpreter that she called that number but the call went to voicemail. She left a message advising of the hearing and providing the appellant with the telephone number of the South Australian Registry to call if he was having difficulties attending or was unable to attend. The Registry also sent an email to the email address provided by the appellant but the email bounced back. 6 While initially the Minister applied on 17 November 2016 for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules (Cth) (Rules), I determined that the matter should instead be adjourned to extend to the appellant the opportunity to appear. The Minister agreed that this was the appropriate course. The reason for the adjournment was because it was not possible to confirm that the appellant had been advised of the listing date. In particular: (1) An email sent by the Registry to the appellant (and the respondent) on 31 August 2016 advising of the listing date bounced back. The email noted in the header that it was "Sent by email only: No hard copy will follow". At the time of the hearing on 17 November 2016, the Registry could not confirm that upon receiving the bounced back email, it had sent the notice of listing by post to the address provided by the appellant in his Notice of Address for Service dated 18 July 2016. (2) The Minister also advised that, due to the solicitor with the conduct of the matter attending a funeral, the solicitors for the Minister (AGS) had failed on this occasion to follow their standard practice of specifying the hearing date in their covering letter to the appellant when they served their written submissions, despite Order 13 of the Orders of the Registrar on 17 June 2016 requiring that that be done. 7 In the circumstances, I could not be satisfied that the appellant had in fact received advance notice of the listing of the appeal with the result that the appropriate course was to adjourn, with the appeal tentatively re-listed for hearing on 13 December 2016. That date was subsequently confirmed. 8 Later attempts to contact the appellant to confirm his availability for this date were not successful. The Registry attempted to contact the appellant by telephone, email and registered post but no response was received. The letter sent by registered post advising the appellant of the re-listing of the matter for hearing has not been collected from the post office, as is revealed by the Court file. 9 On 6 December 2016, the Minister filed an affidavit of Ms Claire Stokes, a lawyer employed by AGS, which was read in due course on the Minister's application for summary dismissal. In that affidavit, Ms Stokes deposed that she had been informed by a senior legal officer at the Department that the Department's records showed that the appellant had departed Australia on 7 November 2016. A screenshot of the Department's movement records relating to the appellant was annexed to the affidavit. Ms Stokes also deposed that she was informed by the officer of the Department and believed that the appellant's bridging visa had ceased on 1 March 2016 and importantly that the appellant did not currently hold a visa which would allow him to re-enter Australia. 10 When Court resumed on 13 December 2016, counsel for the Minister re-agitated his application for the appeal to be summarily dismissed under rule 36.75(1)(a)(i) of the Rules on the ground that the appellant had not appeared when the appeal was called on for hearing, and he made brief oral submissions in support of that application. Rule 36.75(1)(a)(i) provides: (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the appellant: (i) the appeal be dismissed; or (ii) the hearing be adjourned; or (iii) the hearing proceed only if specified steps are taken; … 11 I agree that the appeal should be dismissed under r 36.75(1)(a)(i) by reason of the appellant's failure to attend when the appeal was called. In reaching this view, I have had regard to a number of factors in addition to the appellant's failure to attend today. (1) First, the appellant did not file any written submissions in support of his appeal despite orders by the Registrar made on 17 June 2016 listing the matter for hearing in the Full Court appeal period in November providing that the appellant is to file and serve a written outline of submissions no later than ten business days before the hearing date. (2) Secondly, the appeal book was filed and served by the Minister upon the appellant by post on 4 July 2016 to the address then identified in the appellant's notice of appeal. (I note that this was before the appellant had filed the notice of address for service of 18 July 2016.) (3) Thirdly, the Minister advised that his submissions were served by post on 10 November 2016 upon the appellant to the address identified in the appellant's notice of address for service dated 18 July 2016. (4) Fourthly, as noted above, the Registry has made several attempts to contact the appellant at the postal and email addresses and telephone numbers provided by him to advise him of the hearing listed today. There has been no response from the appellant to any of this correspondence. (5) Fifthly, by a letter sent by email on 12 December 2016 from AGS to the appellant at the two email addresses provided by the appellant on their file, AGS advised of the hearing today and that the appellant was expected to attend. The letter also advised "if you fail to attend, we may apply to have the matter dismissed in your absence. If you are not able to attend the hearing in person, you should apply to the Court to appear by telephone or make arrangements for a lawyer to attend on your behalf". The letter also offered that if the appellant wished to do so, he should not hesitate to contact the author of the letter with any queries. (6) Sixthly, the movement records to which I have already referred show the appellant is no longer in Australia. (7) In the seventh place, when the appeal was called on this morning, Court Officers in Adelaide and in Sydney called the matter outside the courtrooms three times and there was no appearance by the appellant. In this regard, I note that the application this morning was heard by videolink from Sydney to Adelaide. (8) Further, while particulars are provided of the grounds of appeal, they are nonetheless expressed in broad and generic terms which do not identify specific errors in the decision of the Federal Circuit Court or, for that matter, in the Tribunal's decision to affirm the decision of the Minister's delegate. In addition, grounds 2, 3, 5 and 6 seek to raise issues which were not litigated in the Court below and, therefore, a grant of leave would be required to raise those grounds in the exercise of discretion. That exercise of discretion would include an assessment of whether the grounds had any merit. In the absence of any elaboration upon the grounds by the appellant, it would not appear that they have merit, as the Minister submitted in his written submissions. 12 I also note that by email on 29 November 2016, AGS wrote to the Court (copied to the appellant's email addresses) advising as follows: We would be grateful if you could please draw to her Honour's attention that on 16 November 2016 the High Court of Australia granted special leave to two applicants (SZTAL and SZTGM) to appeal from the judgment of the Full Court of the Federal Court of Australia SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. It is anticipated that the High Court will hear the appeal in March or April 2017. The Minister notes that, prima facie the issue dealt with in SZTAL arises in this matter at [189] of the Tribunal's reasons. However, in the Minister's view, the finding at [193] provides an independent basis for upholding the decision. That is, the harm the appellant would face on remand (intentionally or otherwise) was 'not of the gravitas' as to constitute significant harm. Accordingly, the finding with respect to 'intent' was not dispositive of the findings with respect to significant harm, as any harm faced would not have reached the level of 'severe pain and suffering' 13 The decision of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (SZTAL) concerned a challenge to a decision of the then Refugee Review Tribunal in circumstances where (relevantly) the Tribunal found that three appellants in separate decisions would not be at risk of significant harm by reason of their having departed illegally from Sri Lanka. The Full Court's decision relevantly turned upon the meaning of "intentionally inflicted" in the definition of "torture" in s 5(1) of the Act which was relevant to assessing the appellants' claims for complementary protection under s 36(2)(aa) of the Act. The Full Court in SZTAL dismissed the appeals by the protection visa applicants. However, special leave to appeal to the High Court was granted on 16 November 2016, as the Minister's email noted. While the Minister submitted in line with his position outlined in the email quoted above that this appeal was distinguishable, I do not rule upon that question but simply note the potential hurdle to the appeal identified by the Minister if this appeal were ultimately to be pursued and the appellant sought to raise an issue of the kind to be decided in SZTAL. 14 With respect to the last point, and generally as to the appellant's rights, I have had regard to the entitlement of the appellant to apply under r 36.75(2) to set aside the order made today. Whether or not such an application will succeed will 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 appellant's failure to attend the hearing today and the strength of the appellant's case on the appeal if the order dismissing the appeal were to be set aside. 15 For these reasons, the application should be dismissed under r 36.75(1)(a)(i) with costs save for the costs occasioned by and incidental to the adjournment of the hearing on 17 November 2016 which the Minister very properly conceded. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.