Lal v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The Court was to hear today an application by a husband and wife for leave to appeal against a judgment of the Federal Circuit Court (FC Court) and for an extension of time within which to do so. Those applications were brought pursuant to rr 35.12 and 35.14 of the Federal Court Rules 2011 (Cth) (FCR) which provide the procedural regime in respect of applications for leave to appeal against interlocutory judgments of the FC Court. The right of appeal, subject to a grant of leave, is conferred by s 24(1) of the Federal Court of Australia Act 1976 (Cth) and the requirement for leave in respect of interlocutory judgments is imposed by s 24(1A). 2 Leave to appeal is required in the present case. That is so for one or other of two alternative reasons. The first is that r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) provides that a dismissal of proceedings under r 44.12(1)(a), being the rule on which the FC Court Judge in this case proceeded, is interlocutory in nature. Decisions of this Court indicate that r 44.12(2) governs the determination of whether a judgment is interlocutory for the purposes of s 24(1A): SZLQZ v Minister for Immigration and Citizenship [2008] FCA 717 at [5]-[6]; MZZBU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 840 at [25]-[26]; SZTBO v Minister for Immigration and Border Protection [2014] FCA 269 at [19]; and MZZPL v Minister for Immigration and Border Protection [2014] FCA 110 at [19]-[20]. 3 The alternative view is that, as the FC Court appears to have dismissed the application before it on the ground that its jurisdiction had not been properly invoked, that decision was interlocutory in nature, and hence leave to appeal is required: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 at [23]; (2008) 168 FCR 410 at 418-19. 4 Accordingly, I proceed on the basis that the applicants do require leave to appeal, and that they have brought their application for that leave pursuant to r 35.12 of the FCR. The applicants did not file their application for leave until 4 March 2014, some seven days outside the 14 day limitation period fixed by r 35.13 of the FCR. Accordingly, they seek an extension of time under r 35.14 of the FCR. 5 The application for leave to appeal and the extension of time in which to do so was originally listed for hearing on 29 May 2014. Neither applicant attended at that time. Shortly before the hearing, the Registry received, by facsimile from the first applicant, a short memo and an accompanying certificate of sickness. The certificate indicated that a Dr Nguyen had examined the first applicant on 28 May 2014 and considered him to be suffering from severe depression and stress. Dr Nguyen certified that the first applicant was unfit for work from 28 May 2014 up to and including 3 June 2014, but should be able to resume work on 4 June 2014. In that circumstance, and even though the absence of the second applicant on that day was unexplained, the Court adjourned the hearing until today. 6 Neither applicant has appeared at the hearing today. The Registry has not received any communication from either applicant to explain their non-attendance. In addition, an inquiry made of the Court's security desk on the ground floor, has indicated that the applicants are not in the vicinity of the security desk. 7 The second respondent has not attended today, because it has filed a submitting appearance. 8 I am satisfied that the applicants have had appropriate notice of today's hearing. On 29 May, my Associate forwarded letters to each of the applicants informing them that the hearing of the matter had been adjourned to today at 10 o'clock, and included a copy of the formal Court order made on 29 May. In addition, the first respondent has tendered this morning a copy of the letter which the Australian Government Solicitor (AGS) sent to both applicants on 29 May 2014 to the address shown on their filed application. By that letter, the AGS informed the applicants of today's hearing and put them on notice that, if they did not attend, the first respondent would be asking the Court to dismiss their application with costs. I am satisfied in these circumstances that the applicants have had proper notice of today's hearing. 9 In the circumstances just described, the first respondent asks the Court to dismiss the application, relying upon the power which is implicit in r 35.33 of the FCR. Rule 35.33(1)(a)(i) provides, in effect, that if an applicant is absent when an application made under rr 35.12 or 35.14 is called on for hearing, the other party may apply for an order that the application be dismissed. 10 I am satisfied, in the circumstances of this case, that an order under r 35.33 is appropriate. The applicants have not attended today when the matter was called on for hearing. Nor have they communicated with the Court, nor provided any explanation for their absence. An explanation was provided in relation to the first applicant's non-attendance on 29 May, but the Court has had no other communication from the applicants in relation to that non-attendance. In particular, the absence of the second applicant on both occasions remains unexplained. I note further that the applicants have not filed the outline of submissions required by the order of a Registrar of this Court on 7 March 2014. 11 I also observe that a hearing before the Migration Review Tribunal on 19 June 2013 was not able to proceed because of the late provision by the first applicant of a certificate of sickness. In that circumstance, the Migration Review Tribunal adjourned the hearing of the applicants' application for review for a week, but the applicants did not attend on that adjourned occasion. 12 Although this Court would ordinarily be sympathetic to the circumstances of a litigant who is genuinely unable to attend by reason of ill-health, that circumstance does not exist today because, as I have said, the Court has not received any communication from either applicant explaining their non-attendance. Accordingly, the application filed on 4 March 2014 is dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.