ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

(Delivered ex tempore, revised from the transcript)

PERRY J: 1 The applicant is a citizen of the People's Republic of China. He does not have legal representation and is currently not in immigration detention. The application concerns a determination dated 22 November 2021 by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), that he has no power to intervene in the applicant's matter pursuant to section 417 of the Migration Act 1958 (Cth) (the Act) on the basis that that power is available only if the second respondent, the Administrative Appeals Tribunal (the Tribunal), has made a decision under section 415 of the Act. 2 In the letter advising of the Minister's determination, the departmental officer further explained that the Tribunal had not made such a decision because the applicant's application for review was lodged outside the statutory limitation period and therefore was not accepted. 3 The first respondent is represented by Mills Oakley. The second respondent has filed a submitting appearance, save as to costs. When the matter was called on for case management on the morning of 6 July 2022 pursuant to an order of the Court made on 10 June 2022, the applicant did not appear before the Court. 4 In those circumstances, the applicant is in default for the purposes of rule 5.22(c) of the Federal Court Rules 2011 (Cth) (Federal Court Rules), which provides that, "A party is in default if the party fails to: … (c) attend a hearing in the proceeding." 5 Upon confirmation that the appellant was not present on the first case management hearing, which was held by audio-visual means on 6 July 2022 with the assistance of the Mandarin interpreter who attended also at the hearing, the Minister applied for judgment orders on default under rule 5.23(1)(b) of the Federal Court Rules. 6 I consider that this is a matter in which it is appropriate to make that order, having regard to the following considerations. 7 First, on 15 March 2022, a staff member of the Registry who is a Mandarin speaker attempted to contact the applicant by calling the mobile phone number provided by the applicant in his originating application to advise him of the first case management hearing, but that attempt was unsuccessful. 8 Secondly, the matter was listed for the case management hearing on the morning of 6 July 2022 at 9.45am by orders made on 10 June 2022. A copy of those orders was provided to the parties by email on 14 June 2022, which were, relevantly, addressed to the email address provided by the applicant in his originating application. 9 Thirdly, on 23 June 2022, Mills Oakley wrote to the applicant with respect to the proceeding, advising that the matter was listed for a case management hearing on 6 July 2022 at 9:45am before me by Microsoft Teams and that the details for connecting to the case management hearing would be sent to the parties before that date. The letter from Mills Oakley to the applicant further advised that: On 6 April 2022, the solicitors for the Minister wrote to you outlining the Minister's view in relation to your application (further copy enclosed). No response by you was received to that correspondence. Nor have you responded to any of the correspondence sent to you by the Court to your nominated email address in relation to progressing the matter to a hearing. If your contact details have changed, you should take immediate steps to file and serve a Notice of address for service with your updated contact details. … You are required to attend the case management hearing on 6 July 2022. If there is no appearance by you or on your behalf, then the respondent may, without further notice to you, seek orders that your application be dismissed with costs pursuant to r 5.22(c) and r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) and/or s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth). Please note we may rely on this correspondence, including in support of any application for costs. (Emphasis in bold in the original; emphasis in bold and italics added.) 10 The letter identified the lawyer with responsibility for handling the matter on behalf of the Minister, and included that lawyer's telephone number and email address, as well as the email address of another individual within that firm and a fax number. 11 That letter was sent by post to the address for service provided by the applicant in his originating application, and was also sent by email to the email address provided by the applicant in his originating application. In those circumstances, I am satisfied that the applicant was provided with notice of the case management hearing on 6 July 2022, not only by the Registry but also by the Minister's solicitors, and that he was put on notice that the Minister might seek orders dismissing the application if he failed to appear. 12 Fourthly, an email was sent to the parties from the Registry on 4 July 2022 at 1:22pm, referring to the case management hearing to be held on 6 July 2022 at 9:45am via Microsoft Teams. That email also advised the applicant that the Court had arranged for an interpreter fluent in Mandarin Chinese to attend the case management hearing and that the interpreter would be in contact with him prior to the case management hearing. In addition, the email provided the link by which the parties would join the Microsoft Teams meeting for the case management hearing, as well as a telephone number and phone conference ID number in the event that any party wished to attend the case management hearing by audio only. 13 Finally, the Registry wrote again to the parties by email on 5 July 2022 at 2:57pm, including to the email address provided by the applicant in his originating application, confirming receipt of an earlier email from the solicitors for the Minister advising the Court that the Minister did not anticipate any further timetabling orders would be required to prepare the matter for hearing. The Registry advised by that email that no further action by the first respondent would be required with respect to the draft orders and noted that "should the applicant wish to submit any draft orders, he may wish to do so for Justice Perry's consideration in advance of the first case management hearing tomorrow morning". That email also attached an updated version of the timetabling orders previously circulated with the correct stamping date. No draft orders were provided by the applicant in response to that invitation, and no response was otherwise received from him. 14 Having regard to the above evidence, it can reasonably be inferred, to the extent necessary, that the applicant does not intend to press ahead with the application. 15 In all of the circumstances, I consider it was appropriate to make the orders sought by the Minister dismissing the application in default of the applicant appearing at the first case management hearing. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.