Lin v Minister for Immigration and Border Protection

1. The interlocutory application dated 21 March 2016 be dismissed under r 35.33 of the Federal Court Rules 2011 (Cth) for non-appearance by the applicant.
2. Subject to orders 3 and 4 below, the applicant pay the first respondent's costs of and incidental to the interlocutory application dated 21 March 2016.
3. If the applicant contests the provisional order for costs set out in order 2 above, the applicant must file and serve by no later than 5pm on 18 August 2017 a brief outline of written submissions as to why that costs order should not be made.
4. If no such submissions are filed and served by the applicant by the time specified in order 3, order 2 above is confirmed.
5. If the applicant does file and serve submissions under order 3 above, the first respondent is to file and serve by no later than 5pm on 25 August 2017 a brief written outline of submissions in response.
6. Any contest concerning the issue of costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 This matter involves an application for an extension of time and leave to appeal dated 21 March 2016 against a decision of the Federal Circuit Court of Australia on 24 February 2016. The decision is reported as Lin v Minister for Immigration [2016] FCCA 489. The applicant requires an extension of time and leave to appeal from that decision, in which the primary judge dismissed her application for judicial review under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The primary judge concluded that the applicant had not raised an arguable case regarding the refusal of her application for a Skilled (Residence) (Class VB) visa, because the delegate found that the applicant failed to satisfy cl 885.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 2 Clause 885.224 of Schedule 2 to the Regulations required the applicant to satisfy public interest criterion 4020. The applicant submitted below that her migration agent had, without the applicant's knowledge, provided a bogus document to the Department of Immigration and Border Protection in relation to her English competency. The applicant filed various written documents in support of her interlocutory application before this Court. When the matter was called for hearing this morning there was no appearance by the applicant. Mr Knowles of counsel appeared for the Minister. The matter was called outside, and there was still no appearance by the applicant. 3 It is desirable to draw attention to an exchange of correspondence between the applicant and the Registry, some of which has been copied to the Minister's solicitor but not all. The applicant was advised by the Registry on 11 July 2017 that her interlocutory application was listed for hearing before me at 10.15 am today. On 18 July 2017 the applicant emailed the Registry without copying in the Minister's solicitor saying that she wanted to change the hearing date. She was advised the following day by the Registry that she should seek to obtain the Minister's consent to her request for an adjournment and that if it was not forthcoming she would need to make a formal application with supporting documents or medical evidence. 4 On 9 August 2017 the applicant emailed the Registry, copying in the respondent's solicitor, and asked that the Court's attention be drawn to a brief letter attached to that email. In the letter the applicant stated that she could not attend the hearing at 10.15am today because (unamended): I still wait for an extremely vital important evidence and legislation. And also, my brain is horribly scary and stress not in healthy present, which has not any benefit for the hearing on talk! By only make me crazy and make worse on my case. 5 In the letter, the applicant also requested to change the hearing time to "at least after 3 months when I can gain efficient and full evidence" (unamended). 6 In response to the applicant's email of 9 August 2017, the Minister's solicitor advised the applicant via email that the adjournment was opposed and that if she did not attend the hearing today she was at risk of the proceeding being dismissed for non-appearance. The applicant was then informed by my associate via email that the Court was not minded to adjourn the hearing and that she could make an application for an adjournment at the hearing at 10.15am the next day. Completing the email exchange, the applicant emailed my associate, copying in the Minister's solicitor, in which she stated that "tomorrow morning I have to see doctor, I will have my doctor evidence for you tomorrow for my illness" (unamended). 7 As I have mentioned, there was no appearance by the applicant this morning. Mr Knowles made an application for the interlocutory application to be dismissed for non-appearance under r 35.33 of the Federal Court Rules 2011 (Cth), the terms of which are as follows: Absence of a party (1) If a party is absent when an application under rule 35.12 or 35.14 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; or (ii) the application be adjourned; or (iii) the hearing proceed only if specified steps are taken; or (b) if the absent party is the respondent: (i) the hearing proceed generally or in relation to a particular aspect of the application; or (ii) the hearing be adjourned; or (iii) the hearing proceed only if specified steps are taken. (2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order: (a) setting aside or varying the order; and (b) for the further conduct of the proceeding. 8 Rule 35.14, which is referred to in r 35.33(1), relates to an application for an extension of time to seek leave to appeal, which is the nature of the application here. 9 I raised with Mr Knowles my concern that the applicant is a litigant in person in this proceeding, as was the case in the proceeding below. Although not yet raised by the applicant, upon receiving legal advice the applicant may consider that she has some prospects of arguing that she could seek to avoid the operation of s 48 of the Migration Act 1958 (Cth) with respect to any other visa application that she might be minded to make while she is in Australia. This could be raised in relation to the findings that have been made concerning her lack of complicity in what appears to be inappropriate conduct by her migration agent in providing the bogus document referred to in [2] above. She may wish to argue that her visa application was therefore not a valid application. She would require leave to raise this new ground. 10 I also note that it appears that the applicant has resided in this country for almost 10 years, however the materials presently before the Court do not exhaustively state her migration history. 11 It is not disputed, however, that the particular visa application which gives rise to these proceedings is an application that was made by the applicant in 2011. As Mr Knowles has pointed out to the Court, there is nothing in the appeal book which suggests that at any time the applicant wished to withdraw that visa application. 12 In the circumstances, it is appropriate to make an order dismissing the proceeding under r 35.33. The applicant may wish to consider seeking an order under r 35.33(2) to have the order dismissing her proceeding set aside. In considering that matter, the applicant may turn her mind to what I have said above about s 48 of the Act and the possible relevance to her case of the Full Court's decision in Singh v The Minister for Immigration and Border Protection [2016] FCAFC 141. It is not appropriate that I say anything more about that topic. 13 For these reasons, the interlocutory application dated 21 March 2016 is dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.