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[2022] FCA 182
Federal Court of Australia
2022-03-04
Halley J
Original judgment source is linked above.
Introduction 1 In this proceeding the applicant sought leave to appeal a decision of a judge in the Federal Circuit Court at a show cause hearing dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate (Delegate) of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) not to grant the applicant a protection visa. 2 The Minister seeks an order pursuant to r 35.32(c) of the Federal Court Rules 2011 (Cth) (FCR) that the application for leave to appeal be dismissed by reason of the applicant failing to attend a hearing relating to the application. 3 The Minister relies on the following affidavits: (a) an affidavit of Nicola Johnson, a solicitor employed the solicitors for the Minister, sworn on 28 January 2022 (Johnson affidavit); and (b) an affidavit of Arielle Bianca Zinn, a solicitor employed by the solicitors for the Minister, affirmed 25 February 2022. 4 For the reasons explained below, the application for leave to appeal must be dismissed.
Factual background 5 For present purposes, it is only necessary to provide the following background facts. 6 The applicant is a citizen of India who arrived in Australia on 18 January 2015. He originally held a visitor (subclass 600) visa that was valid until 18 April 2015. 7 On 18 February 2015, the applicant lodged an application for a protection visa. 8 On 12 May 2016, the Delegate refused to grant the applicant a protection visa. The applicant then lodged an application with the Tribunal seeking a review of the Delegate's decision. 9 On 16 May 2019, the Tribunal affirmed the decision of the Delegate to refuse to grant the application a protection visa. The applicant then filed a show cause application in the Federal Circuit Court. 10 On 18 December 2019, the primary judge concluded at the show cause hearing that the applicant had been unable to demonstrate an arguable case of jurisdictional error by the Tribunal and dismissed the application for a review of the Delegate's decision. 11 On 30 December 2019, the applicant filed this proceeding seeking leave to appeal from the decision of the primary judge (Application). The applicant provided an email address for service in the Application (nominated email address). 12 On 12 November 2021, the applicant departed Australia. At the time of his departure from Australia he held a bridging visa A (Subclass 010). 13 The applicant has not returned to Australia. 14 On 31 January 2022, the solicitors for the Minister caused a letter to be sent to the applicant at the nominated email address attaching a copy of the Johnson affidavit and inviting the applicant to discontinue his application in this Court as it was now futile because he was overseas with no right of return. No notice of a failure of delivery or "bounce back" was received from the nominated email address nor was any response received from the applicant to that communication. 15 On 8 February 2022, the solicitors for the Minister sent an email to the Court, copied to the applicant, requesting that the proceeding be listed for a case management hearing and stating that if there was no appearance by the applicant at the case management hearing the Minister would make an application to have the appeal dismissed with costs. No notice of a failure of delivery or "bounce back" was received from the nominated email address nor was any response received from the applicant to that communication. 16 The application for leave to appeal was listed for case management at 9.30 am on 25 February 2022. There was no appearance by the applicant at the case management hearing. 17 The solicitor appearing for the Minister at the case management hearing then confirmed that the Minister sought an order pursuant to r 35.32(c) of the FCR that the application be dismissed with costs. 18 At no time since the Application was filed by on 30 December 2019 have the solicitors for the respondent received any contact from the applicant.
Relevant principles 19 Rule 35.32 of the FCR provides that: A respondent to an application under rule 35.12 may apply to the Court for an order that the application be dismissed: (a) for an applicant's failure to comply with a direction of the Court; or (b) for an applicant's failure to comply with these Rules; or (c) for an applicant's failure to attend a hearing relating to the application; or (d) for want of prosecution. 20 In turn, r 35.12 of the FCR provides that: (1) A person who wants to apply for leave to appeal must file an application, in accordance with Form 117. (2) The application must be accompanied by the following: (a) the judgment or order from which leave to appeal is brought; (b) the reasons, if published, for the judgment or order; (c) an affidavit stating the facts that support the application; (d) a draft notice of appeal that complies with rules 36.01(1) and (2); and (e) if the applicant wants to have the application considered without oral argument - a statement to that effect. 21 This Court has made orders dismissing applications for leave to appeal decisions of the Tribunal in migration matters when the applicant has failed to attend a hearing in relation to the application because they have not been in the country or if it is otherwise in the interests of justice to do so: see Lind v Minister for Home Affairs [2020] FCAFC 96 at [8] (Snaden J, Burley and Wheelahan JJ agreeing); CDR15 v Minister for Immigration and Border Protection [2015] FCA 1418 at [1]-[3] (Markovic J); SZUOZ v Minister for Immigration and Border Protection [2016] FCA 932 at [4] (Bromberg J); SZVHV v Minister for Immigration and Border Protection [2016] FCA 511 at [1] (Davies J); MZZWL v Minister for Immigration and Border Protection [2015] FCA 73 at [3]-[5] (Bromberg J).
Consideration 22 In the circumstances I am satisfied that the application for leave to appeal should be dismissed pursuant to r 35.32 of the FCR because the applicant failed to attend the case management hearing at 9.30 am on 25 February 2022, being a hearing in relation to the application for leave to appeal. 23 I note that unlike the cases referred to above, the failure in this case by the applicant was to attend a case management hearing rather than a failure to attend the hearing of the application for leave to appeal. Nevertheless, the text of r 35.32(c) is not confined to the hearing of the application but rather is directed at a hearing relating to the application. I am satisfied that the case management hearing at 9.30 am on 25 February 2022 was a hearing relating to the application for leave to appeal. 24 The Minister has taken reasonable steps to bring to the applicant's notice the case management hearing on 25 February 2022, and in the absence of any notice of a delivery failure or "bounce back" I am satisfied on the balance of probabilities that it was brought to the applicant's attention. 25 In any event, the applicant has departed Australia and given that s 36(2) of the Migration Act 1958 (Cth) provides that it is a mandatory requirement for the grant of a protection visa that the applicant is in Australia, any grant of leave to appeal and subsequent remittal to the Tribunal would be futile.
Disposition 26 The application for leave to appeal is to be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.
CFZ19
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs