DAP16 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. The appellant is to pay the first 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 appellant is a citizen of Malaysia who arrived in Australia in August 2011. He applied for a Protection (Class XA) Visa (protection visa) on 21 April 2014. He claimed to fear harm from gangsters in Malaysia because of an alleged affair with the ex-wife of a gangster. 2 On 22 January 2016, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), made a decision refusing to grant the appellant a protection visa. The delegate's decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 16 September 2016, two days after the appellant had attended a hearing conducted by the Tribunal. 3 By a notice of appeal filed on 1 December 2017, the appellant appeals from a decision of the Federal Circuit Court (FCC) dismissing his application for judicial review of the Tribunal's decision. He appeared without legal representation before the primary judge. 4 The notice of appeal raises two issues: (1) whether the primary judge erred in failing to find that the Tribunal member denied the appellant natural justice and procedural fairness because "the Member is preoccupied with prejudging me that people like me were only here to make false protection application" (ground 1); and (2) whether the primary judge erred in failing to find that the Tribunal and the Department should have considered his case on "complementary grounds" but failed to do so (ground two). 5 No address for service 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 15 May 2018. 6 The appeal was called on for hearing on 22 May 2018 at approximately 10.20 am. 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 briefly in order to allow the Minister's representatives to endeavour to contact the appellant by phone. As I later explain, the Minister's counsel endeavoured to do so without success. 7 In the circumstances when the hearing resumed at approximately 10.55 am, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (FCR) for non-appearance by the appellant and made brief oral submissions in support of that application. 8 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; … 9 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 on today. In reaching this view, I have had regard to a number of factors in addition to the appellant's failure to attend. (1) The appellant did not file any written submissions in support of his appeal despite orders made by the Registrar on 13 December 2017 providing that the appellant was to file and serve any written outline of submissions no later than ten business days before the hearing date. A copy of the orders made by the Registrar was sent by the Minister's legal representatives to the appellant by email on 17 April 2018, together with a covering letter dated 13 April 2018. A copy of the email and covering letter were tendered by the Minister. Importantly, the letter advised that: We note that this matter is listed for hearing before the Court at Level 17, Law Courts Building, Queens Square, Sydney on 22 May 2018 at 10:15am. Please check which Court Room it is being heard [in] [sic] upon arrival. Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011. (emphasis in the original) (2) The Appeal Book was served by the Minister upon the appellant by email and by post on 1 March 2018 to the appellant to the address then identified in the appellant's notice of appeal. (3) The Minister's outline of submissions was served on the appellant by email on 15 May 2018, together with a letter dated 14 May 2018, both of which were tendered by the Minister. That letter also advised that: We note that this matter is listed for final hearing before the Court at the Level 17, Law Courts Building, Queens Square, Sydney on 22 May 2018 at 10:15am. Please check your assigned court room upon arrival. Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011. (Emphasis in the original) (4) The Registry also sent an email to the parties on Friday, 13 April 2018 advising that the matter was listed for hearing on 22 May 2018 at 10:15 am for a half day at a hearing at the Law Courts Building, Queens Square, 184 Phillip Street Sydney. The email further advised that: The courtroom allocated to this matter will be displayed on a notice board at the Federal Court on the day of the hearing or is available on the Daily Court Lists from late in the afternoon the day before the hearing. Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time. The email also advised that the court could be contacted about the matter and gave the telephone number and address for the National Operations Team of the Federal Court. (5) When the appeal was called on this morning, the Court Officer called the matter outside the court room three times but there was no appearance by the appellant. As I earlier mentioned, I then stood the matter down in order to allow further attempts to be made to contact the appellant. The Minister's representative telephoned the appellant on the mobile telephone number provided by him to the FCC at 10:32 am and 10:43 am. There was no answer to either call, both of which went to voicemail where a generic message requested the person telephoning to leave a message. In addition, the Minister's representative telephoned his executive assistant who confirmed that there had no correspondence from the appellant indicating that he would not be attending Court today. (6) The grounds of appeal are expressed in general terms which do not identify with particularity the alleged errors in the decision of the FCC or, for that matter, in the Tribunal's decision to affirm the decision of the Minister's delegate. There was no elaboration upon either ground in the notice of appeal, the applicant's affidavit, or by submissions. (7) In addition, the second ground of appeal is unclear and would appear to raise a new ground not pleaded before the primary judge. As such, the appellant would have required leave in order to raise it on the appeal. Leave should only be granted if it is expedient in the interests of justice to do so. In determining whether leave should be granted, the Court will take into account: any prejudice to the respondent; whether an adequate explanation has been given by the appellant for the failure to raise the ground before the primary judge; and whether the ground he has merit: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ) (quoted with approval in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101] (Lander, Jessup and Middleton JJ)). In the absence of any elaboration upon ground 2 by the appellant, it would not appear that the ground has merit, as the Minister submitted in his written submissions. Nor has any explanation been given for the failure to raise the ground below. 10 Finally, I have had regard to the entitlement of the appellant to apply under rule 36.75(2) of the FCR to set aside the order made today. 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 appellant's failure to attend the hearing today and the strength of his case on the appeal if the order dismissing the appeal were to be set aside. 11 For these reasons, the application should be dismissed under rule 36.75(1)(a)(i) of the FCR with costs as agreed or assessed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.