DHC16 v Minister for Home Affairs

1. The notice of appeal filed on 19 December 2018 is treated as an application for leave to appeal.
2. The application for leave to appeal is dismissed under r 35.33 of the Federal Court Rules 2011 (Cth) due to the applicant's absence at the hearing of the application.
3. The applicant pay the first respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 The appellant has filed a notice of appeal from orders of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Immigration Assessment Authority, which affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a safe haven enterprise visa. 2 The Minister has filed a notice of objection to the competency of the appeal. The basis of the objection is that the primary judge dismissed the application before him under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), because the appellant did not appear at the final hearing of the application. The objection to the competency of the appeal was listed to be heard at the same time as the appeal. 3 The notice of objection to competency is correct. A decision to dismiss an application under r 13.03C(1)(c) for default in appearance is interlocutory in nature: Ajaya v Minister for Immigration and Border Protection [2014] FCA 718; (2014) 143 ALD 652 at [20]-[23]. Therefore, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course, however, given that the appellant is unrepresented I would treat the notice of appeal as an application for leave to appeal, and I will proceed on that basis (and so will henceforth refer to the appellant as the applicant). 4 When the matter was called on for hearing today there was no appearance by or on behalf of the applicant. The court officer went outside the courtroom and formally called the applicant three times and there was no response. Also, the following correspondence has been sent to the applicant concerning today's hearing: (1) On 3 April 2019, the court emailed the applicant and the respondents, advising them of the date, time, duration and location of the hearing and advising that orders determining the matter could be made in a party's absence if the party did not attend. (2) On 12 April 2019, my associate emailed the applicant and the respondents concerning the protocol for providing authorities in this matter, and in that email referred to the date and time of the hearing. (3) On 23 April 2019, my associate emailed the applicant and the respondents, attaching orders made regarding the notice of objection to competency. The email noted the date and time of today's hearing and also advised that if the applicant did not attend the hearing, the notice of appeal may be dismissed in his absence. (4) There was another email from my associate to the parties on 26 April 2019, which contained a similar warning about non-appearance. (5) On 29 April 2019, the solicitors for the respondents sent a letter by email and by express post to the applicant, indicating the date and time of the hearing and saying that if the applicant did not attend on that occasion, the respondents would seek orders from the court that the matter be dismissed and that the applicant pay the Minister's legal costs of the proceedings. 5 It is therefore apparent that the applicant has had ample notice of the date and time of this hearing and the possible consequences for him if he failed to attend. 6 Having treated this matter as an application for leave to appeal, r 35.33 of the Federal Court Rules 2011 (Cth) applies. That rule provides that if a party is absent when such an application is called on for hearing, any other party may apply to the court for an order (among other orders) that if the absent party is the applicant, the application be dismissed. The Minister has applied for such an order today. 7 Rule 35.33 in the present circumstances gives me a discretion as to whether or not to dismiss the proceedings. Authorities in relation to the exercise of similar discretions indicate that the discretion is generally unconfined and that it is undesirable to lay down a list of factors which invariably need to be considered in the exercise of such a discretion. The authorities also indicate, however, as one would expect, that the interests of justice and the desirability of avoiding injustice to the parties must be taken into account: see eg Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. 8 It appears to me that the following factors are relevant to the exercise of my discretion in the present case: (1) The purported appeal, which as I have said I am treating as an application for leave to appeal, was from a decision of the Federal Circuit Court dismissing the application in that court for the non-appearance of the applicant. The fact that the applicant has failed to appear at the final hearing in this court and in the Federal Circuit Court supports an inference that the applicant has little regard for the need to use court resources and the resources of the other parties efficiently by ensuring that he appears at hearings. (2) As I have already outlined, there have been multiple notifications to the applicant of the date and time of the hearing, from which it can be inferred that the applicant was aware of the date of time and the potential consequences of not appearing at the final hearing. (3) The court has been provided with no explanation as to the applicant's failure to appear today. That was also the position in which the Federal Circuit Court found itself in the decision appealed from. 9 In addition, to the extent that the merits of the appeal are relevant, I have considered them and in my view they are insufficiently strong to require that the interests of justice should override the other factors I have referred to in the exercise of my discretion. The grounds of appeal in the notice of appeal to this court, which I will treat as draft grounds for the purposes of the application for leave to appeal, are as follows: 1. The Federal Circuit Court did not properly consider my application by failing to give me an opportunity to present my case. 2. The Federal Circuit Court did not give any written reasons for dismissing my application. 3. The costs order is too much and I cannot pay it. 10 On their face, each of these grounds of appeal is either incorrect or misconceived. In relation to ground 1, the Federal Circuit Court did give the applicant an opportunity to present his case, but the applicant did not take that opportunity up by appearing at the final hearing. In relation to ground 2, the Federal Circuit Court has given written reasons for dismissing the application. In any event, the court was not obliged to given written reasons immediately (if at all) but it did give ex tempore oral reasons on the occasion of the hearing before it. In relation to ground 3, this is not a proper ground of appeal. There is no basis for overturning a costs order simply because the subject of the costs order is unable to pay. 11 It is therefore apparent that to the extent that the merits of the appeal, which is the subject of the application for leave to appeal, are relevant, this appeal is without any merit. 12 For all those reasons, I will exercise the power conferred by r 35.33 of the Federal Court Rules to dismiss the application for leave to appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.