FEDERAL COURT OF AUSTRALIA

ATQ16 v Minister for Immigration and Border Protection [2018] FCA 150

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    ATQ16 pay the first respondent’s costs as agreed or taxed.

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

EX TEMPORE REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia (Federal Circuit Court) made on 9 October 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 March 2016. The decision of the Tribunal was to affirm the decision of a delegate of the Minister dated 29 April 2014 to refuse the appellant’s application for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). The Federal Circuit Court dismissed ATQ16’s application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) because there was no appearance by him at the hearing on 9 October 2017.

2    On 30 January 2018 the Minister filed a notice of objection to the competency of the appeal, on the basis that:

(1)    the orders of the Federal Circuit Court judge made on 9 October 2017 were interlocutory in nature;

(2)    the appellant required leave to appeal that decision, because it was an interlocutory decision: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 35.11 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules);

(3)    the appellant was required to seek leave to appeal by 23 October 2017, which was within 14 days of the date on which the orders were made: r 35.13 of the Federal Court Rules; and

(4)    the appellant did not make an application for leave to appeal the orders made on 9 October 2017. Nor had he sought an extension of time in which to apply for leave to appeal.

Procedural Background

3    As noted above, in the Federal Circuit Court, ATQ16 made an application for judicial review of a decision of the Tribunal dated 11 March 2016, which affirmed the decision of a delegate of the Minister dated 29 April 2014 to refuse his application for a protection visa.

4    On 30 August 2016, a Registrar of the Federal Circuit Court made orders providing for the filing of materials by the parties and listing the matter for a final hearing before the Federal Circuit Court judge on 16 October 2017. The matter was subsequently relisted to 9 October 2017, and the Federal Circuit Court advised the parties of this by a notice of relisting dated 10 March 2017. The notice of relisting was sent to the email address and postal address provided by the appellant on his application for judicial review.

5    ATQ16 did not file any submissions in the Federal Circuit Court. On 9 October 2017, ATQ16 did not appear at the final hearing, and the Federal Circuit Court judge dismissed the application for judicial review under r 13.03C(1)(c) of the Federal Circuit Court Rules and ordered that he pay the first respondent’s costs.

6    A notice of appeal was filed against this order on the following stated grounds:

1.    The court applied an incorrect principle of law.

2.    The court has not considered the important issues of the matter.

3.    Applicant was not aware the new hearing date in advance and when he got to know, he has not given a chance to file documents.

4.    The proceeding in the order which the application relates was pronounced involves a question of law.

5.    There is a jurisdictional error occurs in the order.

7    ATQ16 did not file written submissions as required by this Court’s orders of 2 November 2017; and he did not appear at the hearing today. On 2 January 2018 the Court sent him notice of today’s listing to the email address notified by him. On 9 January 2018 the Court sent ATQ16 an amended notice of listing. The amended notice of listing stated a different judge listed to hear the appeal, but the time and date of the hearing remained unchanged. On two occasions before the hearing, on 12 February 2018 and 16 February 2018, Chambers staff sent an email to ATQ16 advising him of the time and date of the hearing. Both of these emails requested that he confirm receipt of the email. ATQ16 did not respond to any of these attempts by the Court to communicate with him. On 19 February 2018 Chambers staff called the telephone number provided by ATQ16 on his notice of appeal; spoke to someone at that number; and conveyed to that person the time and date of the hearing. Despite being advised of today’s hearing by these communications stated above, AQT16 did not attend today’s hearing.

8    Section 25(2B) of the FCA Act empowers a single judge or a Full Court to, relevantly in paragraph (bb)(ii), make an order that an appeal to the Court be dismissed for the failure of the appellant to attend a hearing relating to the appeal.  Rule 36.75(1)(a)(i) of the Federal Court Rules further provides that, if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal be dismissed. If the Minister’s submissions are accepted, however, there is in truth no appeal on foot.

9    Section 25(2BA) of the FCA Act further provides that a reference to an appeal includes a reference to an application of the kind mentioned in s 25(2), which includes applications for leave and for extensions of time to appeal. As noted above, however, there is no such application on foot.

10    Rules 5.22 and 5.23 of the Rules would, however, appear to apply in the present circumstances. These Rules provide for orders in default. A party will be in default where the party fails to attend a hearing in the proceeding: see Rule 5.22(c). Under Rule 5.23(1)(b), if an applicant is in default, then the respondent may apply for an order that the proceeding be dismissed: see Rule 5.23(1)(b). It appears to me that, bearing in mind the above-mentioned circumstances as well as those mentioned hereafter, it is appropriate to dismiss the proceeding on the basis of non-appearance.

11    The Minister filed written submissions. The Minister also filed an affidavit of Jarrod Rubin Blusztein dated 14 February 2018. Annexure JRB-1 to that affidavit is a copy of an email from the Minister’s representative to the appellant attaching a letter inviting the appellant to discontinue the current proceeding and proposed minutes of consent orders for the current proceeding to be dismissed.

12    It is clear enough that, as the Minister submitted, the so-called appeal is incompetent. This is because no appeal against an interlocutory judgment or order may be brought in this Court without this Court’s leave: see s 24(1A) of the FCA Act. The judgment and orders from which this purported appeal is sought to be brought were of an interlocutory kind. It is well-accepted that such is the nature of an order dismissing an application for non-appearance under r 13.03C(1)(c) of the Federal Circuit Court Rules: see, for example, Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]; Kaur v Minister for Immigration and Border Protection [2014] FCA 188 at [3]. The would-be appellant has not sought the requisite leave to appeal and no basis for the grant of leave appears in the materials presently before the Court. It must be concluded that the appeal, so-called, is incompetent and the proceeding is liable to be dismissed on this account.

13    In any event it should be borne in mind that, if an application for leave had been made, it might have been difficult for ATQ16 to satisfy the second limb of the test for a grant of leave as stated in Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398-399, that substantial injustice would result if leave were refused supposing the decision of the primary judge to be wrong, since if leave were refused, it would remain open to ATQ16 to apply to the Federal Circuit Court for the orders in question to be set aside, and for his application for judicial review to be reinstated.

14    For these reasons, I would dismiss the proceeding, with costs as agreed or taxed.

Associate:

Dated:    22 February 2018