FEDERAL COURT OF AUSTRALIA

FJA17 v Minister for Home Affairs [2019] FCA 1936

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

3.    The Minister give written notice to the appellant that:

(a)    The appellant has the right to apply to the Court under sub-rule 36.75(2) of the Federal Court Rules 2011 to set aside orders 1 and 2 and for the further conduct of the hearing of the appeal.

(b)    Any such application should be made promptly and be made returnable before O’Bryan J and should be supported by:

(i)    An affidavit explaining the circumstances in which the appellant failed to attend the hearing today, including evidence from a medical practitioner concerning the illness of the appellant’s daughter.

(ii)    A written submission as to the basis of and merits of the appeal.

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

REASONS FOR JUDGMENT

(Revised from transcript)

O’BRYAN J:

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 21 May 2019 reported at FJA17 v Minister for Immigration & Anor [2019] FCCA 1117.

2    The appellant is a citizen of Nepal and arrived in Australia on 25 April 2014 on a Sponsored Family Stream (subclass FA-600) visa. On 23 May 2014 the appellant applied for a protection visa. On 12 November 2015 a delegate of the Minister refused to grant the protection visa under s 65 of the Migration Act 1958 (Cth) (Act). On 3 December 2015 the appellant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 30 October 2017 the appellant appeared before the Tribunal with the assistance of a Nepali interpreter. On 8 November 2017 the Tribunal affirmed the decision under review. On 7 December 2017 the appellant sought judicial review of the Tribunal’s decision under s 476 of the Act.

3    Following the dismissal of the application for review by the Federal Circuit Court of Australia, on 14 June 2019 the appellant filed an application for an extension of time in which to appeal to the Federal Court and an accompanying affidavit annexing a draft notice of appeal. The judgment and orders of the primary judge were, in fact, made on 21 May 2019. The application for an extension of time was lodged 24 days later on 14 June 2019. Pursuant to rule 36.03 of the Federal Court Rules 2011 (Rules), the relevant time period within which the appellant was required to file a notice of appeal was 28 days. Accordingly, an extension of time was not required.

4    The Minister wrote to the Court on 17 July 2019 and proposed that the appellant’s draft notice of appeal be treated as a notice of appeal. On 13 August 2019 the Court made orders that the draft notice of appeal annexed to the appellant’s affidavit filed on 14 June 2019 be treated as instituting a notice of appeal.

5    On 13 August 2019 the Court made orders for the filing of written submissions by the appellant and the Minister. A written outline of submissions has been filed and served on behalf of the Minister. No written submissions were filed on behalf of the appellant. The hearing of the appeal was listed for 2.15pm today.

6    On 24 October 2019 the solicitors for the Minister wrote to the appellant serving a copy of the appeal book in this matter and notifying the appellant that the matter was listed for hearing on today’s date at 2.15pm and providing the address of the Court. The solicitors for the Minister also informed the appellant that if she did not attend the hearing, the Minister would seek orders from the Court that the matter be dismissed and that the appellant pay the Minister’s legal costs of the proceeding.

7    On 11 November 2019 the solicitors for the Minister sent a further letter to the appellant by email and express post enclosing a copy of the Minister’s submissions and list of authorities. By that letter, the solicitors for the Minister reminded the appellant that the appeal was listed for hearing on today’s date at 2.15pm and also reiterated that if the appellant did not attend the hearing the Minister would seek orders from the Court that the appeal be dismissed and the appellant pay the Minister’s costs.

8    Earlier today, the appellant sent a letter to the Court and the Minister by email, which stated:

I wish to advise you that I am afraid I cannot attend the hearing scheduled at 2.15pm on 18 November 2019 due to my daughter’s sudden illness. I sincerely request the scheduled hearing be vacated and rescheduled at a later date. Thank you for your compassionate approach and consideration of my request.

9    The letter was not supported by any evidence and provided no information concerning the illness of the appellant’s daughter. Subsequent to receiving that email, the solicitors for the Minister sent an email to the Court and the appellant advising that the Minister opposed the adjournment on the basis that the appellant had not provided any medical evidence in support of the requested adjournment. The email also stated that if the appellant did not appear at the hearing of the appeal, in person or by telephone, the Minister would seek dismissal for non-appearance with costs. The Court also sent an email to the appellant advising that an adjournment would not be granted on the basis of the appellant’s letter and asked the appellant whether she was able to appear at the hearing of the appeal by telephone. No response to that email was received.

10    When the appeal was called for hearing at 2.15pm today there was no appearance by the appellant. The Minister has sought an order under sub-rule 36.75(1) of the Rules dismissing the appeal on the basis that the appellant was absent when the appeal was called for hearing.

11    In the circumstances, I will make that order. The appellant has the right under sub-rule 36.75(2) to apply to the Court to set aside that order and for the further conduct of the hearing of the appeal. I will direct the Minister to inform the appellant of that right in writing. I will also direct the Minister to inform the appellant that any such application should be made returnable to me, that it should be made promptly and that it should be supported by:

(a)    an affidavit explaining the circumstances in which the appellant failed to attend the hearing today, including evidence from a medical practitioner concerning the illness of the appellant’s daughter; and

(b)    a written submission as to the basis and merits of the appeal.

Associate:

Dated:    20 November 2019