BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. Pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the appellant and counsel be permitted to deliver oral submissions by way of internet connection at the hearing.
2. The appeal is dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).
3. The appellant pay the first respondent's costs fixed in the sum of $3,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 When this matter was called outside court this morning, the appellant did not appear. Nor did he join the hearing by Microsoft Teams link, despite being provided with a copy of that link and being invited to join by that link or in person. Nor has he provided any written submissions in accordance with directions made for preparation of the appeal by the Registrar. In those circumstances, the Minister has sought that I exercise the power under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) that the appeal be dismissed because of the appellant's non-appearance. 1 For the purpose of considering that request, I have reviewed the communications between the Court and the appellant. 2 The notice of appeal was filed on 9 July 2020. The appellant appeals from a decision of the (then) Federal Circuit Court of Australia, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister to refuse the appellant a Protection (Class XA) (Subclass 866) visa. 3 A Registrar of this Court made programming orders on 14 July 2020 with respect to the appeal, including as to the filing of submissions. The appellant did not file any submissions. The Minister's solicitors filed submissions on 30 March 2022. 4 The parties were contacted by the National Operations Teams of this Court on 13 December 2021 to ascertain unavailable dates between February and April 2022. The appellant did not respond to the Court's enquiry. 5 By email dated 17 January 2022 the parties were notified that it was intended the matter would be listed in April 2022. Available dates were requested for this period. No response was received from the appellant. 6 By email dated 11 February 2022 the parties were notified of the hearing date of 27 April 2022. 7 By email dated 4 April 2022 my associate contacted the parties requesting that they confirm whether they were content for the hearing to proceed virtually, based on the COVID-19 directions and guidelines in place at the time. The appellant did not respond. 8 On 14 April 2022 and 19 April 2022, staff of this Court made several attempts to contact the appellant by telephone. Each time they were unsuccessful. 9 By email dated 21 April 2022 my associate notified the parties that it would be possible to conduct the hearing in person due to changes in the COVID-19 restrictions and guidelines, and requested that the parties indicate whether they were able to attend the hearing in person. By reply email that day the Minister's solicitors requested to appear by video-link as counsel already briefed to appear is located in Sydney. The appellant did not respond. 10 By email dated 21 April 2022 my associate confirmed that the hearing would proceed virtually by Microsoft Teams and provided the parties with connection details to join the hearing. 11 Yesterday (26 April 2022) the appellant emailed the Court requesting a new hearing date because of his mental and physical condition. He said that two weeks ago he had a filling in the left side of his jaw (mouth) and that he still has severe pain if he talks. There was no medical certificate provided in this regard. He relied on a letter from a counsellor as to his mental health. The letter dated 21 April 2022 addressed to 'to whom it may concern' states that the appellant had been attending fortnightly counselling sessions and suffers from a range of trauma related symptoms including anxiety and depression. It does not refer to any court hearing or any potential to appear at any court hearing. 12 This email and attachment were provided to the Minister's solicitors, who by email copied to the appellant indicated that the Minister opposed an adjournment on the basis that the appellant had not provided any medical evidence regarding his dental treatment, and the evidence provided regarding his mental health does not state why his condition prevents him from attending the hearing. The Minister's solicitors also said that they intended to request that the appeal be dismissed with costs if the appellant did not attend. 13 By reply emails on 26 April 2022, my associate confirmed that the hearing listed for today would proceed and informed the appellant that he could connect to the hearing virtually using the connection details provided on 21 April 2022, or attend the hearing in person if he preferred. 14 The appellant has failed to provide any medical evidence that supports or addresses his claim that he is unable to appear in Court for a hearing either in person or by video-link and that accordingly there should be an adjournment. Neither the appellant's email nor the letter from the counsellor descend into any details as to why the appellant could not participate in the hearing today. To be meaningful, any evidence in support of an adjournment on medical grounds must explain how it is that an appellant suffering from a medical condition would be unfit for participation at a court hearing: Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]. 15 Furthermore, there was no affidavit evidence in support of an adjournment of the hearing. Hearings are only adjourned when a proper basis is established. The resources of the public and the Court can be wasted by adjournments absent proper grounds: CQH16 v Minister for Immigration and Border Protection [2018] FCA 672 at [11]. 16 I am satisfied that the appellant has had proper notice of the programming orders, the hearing date for the appeal and today's hearing. The Court has arranged for a Bengali interpreter to be present to assist the appellant. 17 Accordingly, it is appropriate to refuse any adjournment as requested by email by the appellant, to note that an adjournment was not pursued by the appellant today, and to accede to the Minister's request that the appeal be dismissed by reason of the appellant's non-attendance. 18 The Minister in his submissions filed in support of the appeal requested that costs be fixed in the amount of $3500. That sum is modest having regard to the amounts provided for by way of a short form bill for an appeal. I will fix costs in the sum of $3,500. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.