FEDERAL COURT OF AUSTRALIA

ASB15 v Minister for Immigration and Border Protection [2015] FCA 1413

THE COURT ORDERS THAT:

1.    The first respondent have leave to bring an application under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules).

2.    Any requirement of the Rules which would otherwise operate to restrict or prohibit the making or determination of that application be dispensed with.

3.    The application be granted.

4.    The appeal is dismissed because of the absence of the appellant.

5.    The appellant pay the first respondent's costs of and incidental to the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 2 November 2013 on a visitor visa.

2    The appellant applied for a Protection (Class XA) visa (protection visa) on 23 January 2014 claiming to fear harm in China due to her Catholic faith and further claiming that she was arrested and detained by police and that she had been persecuted by her former husband.

3    On 20 June 2014, a delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the appellant a protection visa.

4    On 17 July 2014, the appellant applied to the then Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision under review by a decision dated 16 April 2015.

5    On 11 May 2015, the appellant sought judicial review of the Tribunal decision in the Federal Circuit Court of Australia.

6    Before this Court is an appeal from the decision of the Federal Circuit Court of Australia in ASB15 v Minister for Immigration and Border Protection [2015] FCCA 2227. The appellant appeals from the whole of the judgment.

7    The appellant filed her Notice of Appeal together with an affidavit on 31 August 2015. On 31 August 2015, the Court wrote to the appellant informing her that it was anticipated that the Court would hear the appeal during the sitting period 2-27 November 2015. Attached to the letter were directions made by the Deputy District Registrar which included directions that:

(a)    The appeal be listed for hearing on a date to be fixed during the sitting period 2 – 27 November 2015 unless the Court advises that the appeal will be heard on a different date; and

(b)    The appellant file and serve a written outline of submissions no later than ten (10) business days before the hearing date.

8    The hearing of the appeal was set down for 4 November 2015 at 10:15am. The appellant was advised by the Court of the hearing date, by letter to the appellant’s address for service, on 29 September 2015.

9    When the matter was called on for hearing on 4 November 2015 the appellant was absent. The matter was called both inside and outside the Court. The appellant made no appearance. The Court then adjourned so that enquiries could be made concerning the appellant’s whereabouts. During the adjournment Court staff made multiple attempts to contact the appellant by telephone (including leaving voice messages in Mandarin) and by email.

10    Later, during the morning of 4 November 2015, the Court resumed and the matter was again called on for hearing. A formal call was made both inside and outside the Court. The appellant did not appear. Mr Galvin, representing the first respondent then advised the Court that he had also attempted to contact the appellant by telephone and email.

11    I was satisfied that his attempts, and the attempts of the Court staff, had failed to elicit any response from the appellant.

12    Mr Galvin then sought an order pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) to dismiss the appeal. However, the Court drew to Mr Galvin’s attention that certain materials in the appeal book suggested the appeal might have arguable merit. The Court adjourned the matter, made certain orders for its future management and issued a referral certificate pursuant to r 4.12 of the Rules. In anticipation that events might require those orders to be revisited the first respondent was given leave to apply on giving 72 hours’ notice.

13    Pro-bono legal assistance for the appellant was obtained on 18 November 2015. However the pro-bono legal representative was also unable to make contact with the appellant. Because of this, the pro-bono legal representative sought, and on 2 December 2015, was granted permission to cease to provide legal assistance pursuant to r 4.16 of the Rules.

14    The Court advised the appellant by letter and email, and the first respondent by email, of the cessation of the referral certificate on 2 December 2015. That same day, the first respondent applied for a directions hearing.

15    The matter was then listed for 4 December 2015 for hearing by video link from Hobart. I am satisfied that the Court, by its officers, attempted to notify the appellant of the listing. On 3 December 2015 officers of the Court (a) emailed notice of the listing attaching a letter to the appellant, (b) sent the original letter by express post, (c) sought to contact the appellant to advise of the listing by sending a text message and (d) leaving a telephone voice message in Mandarin.

16    I am satisfied that there was no response at all from the appellant to any of the communications made on 3 December 2015.

17    More generally, the appellant has not had any contact with the Court at all since 31 August 2015, the date on which she filed her Notice of Appeal.

18    When the matter was called on 4 December 2015, again there was no appearance by or on behalf of the appellant.

19    Mr Galvin thereupon made an oral application for an order pursuant to r 36.11(2)(h) of the Rules dismissing the application for want of prosecution but, the Court having observed that there had been no service of the notice arguably required in that regard pursuant to r 36.74(2) of the Rules, after a short adjournment to seek instructions, renewed his earlier application, pursuant to r 36.75(1)(a)(i) of the Rules, that the Court dismiss the appeal on the basis of the appellant’s failure to appear.

20    Mr Galvin advised the Court that the appellant had not communicated with the first respondent, either orally or in writing, since filing her Notice of Appeal. He drew attention to the history of this matter as recounted above. Additionally, he relied on Exhibit R1 (tendered to the Court on 4 November 2015), a letter dated 7 September 2015 in which, by way of correspondence to her address for service, the appellant had been advised by the solicitors acting for the Minister that in the absence of an appearance “the Minister may apply to have the matter dismissed in accordance with the Federal Court Rules 2011 (Cth) with costs”.

21    The Court has power pursuant to s 25 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to make an order that an appeal to the Court be dismissed if an appellant fails to attend a hearing relating to the appeal (s 25(2B)(bb)(ii) of the FCA Act). The Rules prescribe the circumstances in which a party may seek such an order.

22    Rule 36.11 of the Rules provides:

Directions

(1) A party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of an appeal.

(2) Without limiting subrule (1), a party may apply to the Court for an order for the following:

…

(h) dismissing an appeal for want of prosecution;

(i) vacating a hearing date;

(j) making an order that an appeal to the Court be dismissed for:

(i) failure to comply with a direction of the Court; or

(ii) failure of the appellant to attend a hearing relating to the appeal;

23    Rule 36.75 of the Rules provides:

Absence of party

(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a) if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)     the hearing 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 claim for relief in the appeal; 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 hearing.

24    Mr Galvin requested that the Court dispense with any requirements of the Rules which would stand in the way of his application being determined forthwith.

25    Because there has been repeated and wholly fruitless efforts over some months to contact the appellant regarding the listing of the appeal and this application by (a) officers of the Court, (b) pro-bono counsel and (c) the solicitors acting on behalf of the Minister, I am satisfied that it would be pedantic to insist on the matter being relisted and that there would be no injustice to the appellant in abridging time. Pursuant to r 1.34 of the Rules, I will order that compliance with any provision of the Rules which would otherwise stand in the way of that occurring be dispensed with.

26    In SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 at [8], Flick J observed “If an appeal has any merit, there may be reluctance to dismiss it simply because an appellant has failed to appear”. I respectfully agree with those observations. They explain why I did not take that course when first submitted for by Mr Galvin.

27    However the interests of justice do not permit leaving this appeal in limbo (see s 37M of FCA Act).

28    Mr Galvin, who at all times in this matter has acted consistently with the first respondent’s obligations as a model litigant, disclaimed any suggestion that the first respondent was in a position to establish that the appellant wilfully had chosen not to appear. Dismissing the appeal pursuant to r 36.75(1)(a)(i) of the Rules therefore has the advantage that were it to transpire that the appellant had suffered some calamitous event that prevented her from responding to the many attempts to contact her, there may be a possibility, albeit far from automatic, pursuant to r 36.75(2) of the Rules, to have the orders made today set aside.

29    I make the orders Mr Galvin seeks and dismiss the appeal on the basis of the non-attendance of the appellant. I further order that the appellant pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    9 December 2015