EXB18 v Minister for Home Affairs

1. The application for leave to appeal is dismissed under rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2. The applicant 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 applicant is a citizen of India. He seeks leave to appeal from a decision of the Federal Circuit Court (FCC) given on 17 December 2018 dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). By that decision, the Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Home Affairs (the Minister), not to grant the applicant a protection visa. The FCC dismissed that application on the ground that the applicant had failed to show cause, why his application for judicial review should be allowed to go further. 2 Leave to appeal is required because the dismissal of the proceeding under the show cause mechanism is an interlocutory decision, as is expressly made clear by rule 44.12(2) of the Federal Circuit Court of Australia Rules 2001 (Cth) (the FCC Rules). In turn, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that an appeal from an interlocutory judgment is not to be brought in the Federal Court "unless the Court or a Judge gives leave to appeal". 3 The application for leave to appeal raises the following grounds. 1. The Hon Judge failed to consider that The Tribunal decision was effected by jurisdictional error in that the Tribunal failed to correctly apply the test in s 36(2)(a) and (aa) of The Migration Act 1958. 2. The learned FM dismissed the application without considering the legal and factual errors contained in the decision of [the] AAT. 4 Ground 2 of the draft notice of appeal is the same terms as ground 2 of the application for leave to appeal, while ground 1 states that: The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. (without alteration) 5 No address for service has been filed by any legal representative for the applicant and, as such, it appears that he has not engaged legal representation. Nor has the applicant filed any written submissions in advance of the hearing of the application in accordance with the orders made by a Registrar of the Court on 31 January 2019 providing that the applicant was to file and serve written submissions no later than 10 business days before the hearing date. 6 The matter was called on for hearing at 2.15 pm on 30 May 2019. The applicant did not appear and, as a consequence, the matter was called outside the courtroom three times, but there was still no appearance by the applicant. Further, a telephone call was made by the Minister's solicitor, with the assistance of the interpreter, to the telephone number provided by the applicant on his application for leave to appeal. The telephone call was not answered and went through to voicemail. A message was left on voicemail for the applicant to contact the Federal Court urgently. In the circumstances, I adjourned the court briefly in case the applicant had been delayed and was still on his way to court. During the brief adjournment, inquiries were made by the Court Officer of Registry who said that the applicant had not attended the Registry. 7 The hearing resumed again at approximately 2.40 pm and there was still no appearance by the applicant. As a result, the Minister applied for the appeal to be dismissed under rule 35.33 of the Federal Court Rules 2011 (Cth) (FCR) for non-appearance and made brief oral submissions in support of that application. 8 The Minister also tendered a copy of an email sent on Thursday, 23 May 2019 at 12.49 pm from the Minister's solicitors to the email address provided by the applicant on his draft notice of appeal. That email enclosed correspondence of the same date and advised the applicant that should he have any queries, he should not hesitate to contact the Minister's solicitors. The letter provided contact details for the partner responsible for the conduct of the matter, as well as the lawyer presumably under his supervision. Further contact details were provided in the footer to the email. The letter attached to the email stated, relevantly, that: This matter is listed for hearing on 30 May 2019 at 2:15 pm before Justice Perry at the Federal Court of Australia, Level 6, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, BRISBANE QLD 4000. You are required to attend court on this occasion. If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister's legal costs of the proceedings. 9 The first respondent's outline of submissions was also enclosed. 10 Rule 35.33(1) of the FCR provides that: If a party is absent when an application under rule 35.12 ... is called on for hearing, any other party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed ... 11 I agree that the application for leave to appeal should be dismissed under rule 35.33(1)(a)(i) by reason of the applicant's failure to attend when the application was called on today. In reaching this view, I have had particular regard to the correspondence on 23 May 2019 from the Minister's solicitors to the applicant advising of the date, time and location of the hearing and the possible consequences if the applicant did not attend, and giving fulsome contact details if the applicant had any queries or difficulties. I have also taken into account that the draft grounds of appeal are expressed in general terms which do not identify with any specificity any 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 application for leave to appeal and as I have earlier noted, no written submissions were filed by the applicant. 12 Finally, I have had regard to the applicant's entitlement to apply under FCR rule 35.33(2) 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 applicant's failure to attend the hearing today and the strength of his case on the proposed application for leave to appeal (and proposed appeal) if the order dismissing the application were to be set aside. 13 For these reasons, the application for leave to appeal should be dismissed under rule 35.33(1)(a)(i) of the FCR with costs as agreed or assessed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.