BQI18 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2022-10-26|Before: Halley J

Subject to order 3, the appeal be dismissed with costs.
The first respondent forthwith serve a copy of these orders and reasons for judgment on the appellant: a. by email; and b. physically, at the addresses recorded on the notice of appeal filed on 9 March 2020.
The appellant have liberty to apply, within 21 days of these orders being served in accordance with order 2(b), to vary or set aside order 1 for good cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This proceeding is an appeal from a decision of what was then the Federal Circuit Court of Australia (FCCA) delivered ex tempore on 24 February 2020 dismissing an application by the appellant for judicial review of a decision of the second respondent (IAA) affirming a decision of a delegate not to grant the appellant a protection visa. 2 By an interlocutory application filed on 27 September 2022 (Application), the first respondent (Minister) seeks orders pursuant to r 36.74(1)(a) of the Federal Court Rules 2011 (Cth) (FCR) to dismiss the appeal by reason of the appellant's failure to appear at a case management hearing in this proceeding on 9 September 2022. 3 The Minister relies on two affidavits of Benjamin Peter James Wilson, a solicitor employed by the solicitors for the Minister, sworn on 23 September 2022 and 7 October 2022.

BACKGROUND 4 The Application arises in the following context. 5 On 20 December 2016, the appellant, a citizen of Sri Lanka, applied for a Temporary Protection visa (Subclass 785) (protection visa). 6 On 11 May 2017, a delegate of the Minister refused to grant a protection visa. The delegate was not satisfied that the appellant met the criteria for the grant of a protection visa. 7 By a letter dated 17 May 2017, the IAA informed the appellant that his application for a protection visa had been referred to it for review (review letter). Attached to the review letter was a fact sheet and practice direction which provided the appellant with an opportunity to put on new information and submissions. The appellant put on submissions in a statutory declaration. 8 On 8 March 2018, the IAA affirmed the delegate's decision (Confirmation Decision). The IAA was not satisfied that the appellant met the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act). 9 On 27 July 2018, the appellant filed an amended application in the FCCA pursuant to s 476 of the Act for a constitutional writ in respect of the Confirmation Decision. 10 On 24 February 2020, the primary judge dismissed the amended application and made orders that the appellant pay the Minister's costs fixed in the amount of $6,500.00: BQI18 v Minister for Immigration & Anor [2020] FCCA 370. 11 On 9 March 2020, the appellant filed a notice of appeal seeking orders that the decision of the primary judge in the FCCA be set aside and the Confirmation Decision be quashed (notice of appeal). 12 The notice of appeal records the appellant's contact details at the foot of the document, in compliance with r 2.16 of the FCR. On page 2 of the notice of appeal, the appellant has listed an email and physical address as his addresses for service. 13 Pursuant to r 11.01(5) of the FCR, if a party provides an email address, the party agrees to receive documents at the email address. It follows from this that the appellant agreed to service of documents in the proceeding by his email and/or physical address. 14 On 10 March 2020, a Registrar of the Court made orders for the preparation of the appeal. 15 On 31 August 2022, the Registry emailed the parties advising that the matter had been allocated to my docket and it had been listed for a first case management hearing at 9.15am on Friday, 9 September 2022 (Case Management Hearing) and it would be conducted by the Microsoft Teams link provided in the email (Registry email). 16 On the same date, Mr Wilson gives evidence that he received a reply from the appellant's email address with the word "Hi" in the subject line. There was no text in the body of the email. 17 On 6 September 2022, Mr Wilson emailed the appellant and provided him with further notice of the Case Management Hearing. In his email Mr Wilson advised the appellant that: The matter has been listed for a case management hearing by Microsoft Teams at 9.15am on 9 September 2022 before Justice Halley. In the email below, the Court has sent you the Microsoft Teams details to access the case management hearing. You are required to attend Court by Microsoft Teams on this occasion. If you do not attend, the Minister will seek orders from the Court for your appeal to be dismissed and for you to pay the Minister's legal costs. 18 Mr Wilson received a reply from the appellant's email address later that day with the word "Hi" in the subject line and again, there was no text in the body of the email. I infer from this, that the appellant's email address is a valid email address. 19 On 7 September 2022, Mr Wilson gives evidence that he sent a further email to the appellant but he received no response from the appellant. 20 On 9 September 2022, when the matter was called before me at the Case Management Hearing there was no appearance by the appellant.

CONSIDERATION 21 Rule 36.41(1)(e)(i) of the FCR provides that I may deal with the Application without an oral hearing. 22 Rule 36.74(1) of the FCR provides that a respondent may apply to the Court for an order that an appeal be dismissed for a failure by the appellant to do any one of four different things, including "comply with a direction of the Court". I am satisfied that the Registry email advising that the matter had been docketed to me and directing the parties to appear for the Case Management Hearing is such a direction. 23 Rule 36.74(2) provides that an application under sub-rule (1) must be served on the appellant either at the address for service or personally. Mr Wilson gives evidence that the Application was served on the appellant at his nominated email address on 27 September 2022 at 12:13 pm. 24 I acknowledge that a dismissal of a proceeding for a failure to comply with a direction of the Court to attend a case management hearing is a serious step but at the same time every party has an obligation to ensure that their address for service is correctly recorded in the formal court processes and is kept up to date. Moreover, in this case the appellant's lack of any substantive response to the emails that he has received from the Court and the Minister implies that he has no real interest in pursuing his appeal. 25 For the foregoing reasons, I am satisfied that the appeal should be dismissed.

DISPOSITION 26 An order should be made dismissing the appeal. Nevertheless, the possibility exists that there is a good explanation for why the appellant failed to comply with the direction to attend the Case Management Hearing. On this basis, I will direct that the Minister serve a copy of the order dismissing the appeal but give the appellant liberty to apply within 21 days to set that order aside with good cause. The granting of a confined liberty to apply will have the effect of retaining the Court's jurisdiction to ensure that the order dismissing the appeal, once entered, will not be beyond the reach of the Court to vary it or set it aside if the appellant can demonstrate good cause: ALD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735 at 22 (Stewart J) citing Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 at 529-30 (Barwick J), 531-2 (Menzies J), 535 (Walsh and Bell JJ), 539 (Gibbs J, in dissent). 27 The Minister has sought costs of the proceeding. I am not presently aware of any reason why costs should not follow the event. I make that order as to costs but that order will also be subject to the liberty to apply. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Federal Court Rules 2011(Cth)rr 2.16, 11.01, 36.41, 36.74

Migration Act 1958(Cth)ss 36, 476

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)