FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration and Border Protection [2020] FCA 191

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, as agreed or assessed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

KENNY J:

1    This is an application for an extension of time and leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 22 November 2018. That judgment, bearing the citation Ali v Minister for Immigration & Anor [2018] FCCA 3461, dismissed an application to reinstate the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal made on 9 May 2017. The primary judge had earlier dismissed the proceeding under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 when the applicant failed to attend a hearing on 3 September 2018.

2    The Tribunal’s decision of 9 May 2017, which was made under s 362B(1E) of the Migration Act 1958 (Cth), had confirmed the Tribunal’s previous decision to dismiss the applicant’s application for review of a decision to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa. On 10 April 2017, the Tribunal had dismissed the applicant’s application under s 362B(1A)(b) on the basis of the applicant’s non-appearance before the Tribunal.

3    The applicant requires leave to appeal as the judgment he wishes to challenge is interlocutory: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be filed within 14 days of the judgment sought to be appealed: see Federal Court Rules 2011 (Cth) r 35.13. The applicant filed an application for an extension of time for leave to appeal on 7 January 2019, which was 32 days out of time. He, therefore, requires an extension of time in which to seek leave to appeal.

4    The respondent Minister appeared by counsel at the hearing today. The applicant, having been called, has not appeared at the hearing. The Minister has applied for the appeal to be dismissed on the basis that the applicant has failed to appear, in exercise of the power in either r 35.33 of the Federal Court Rules or s 25(2B)(bb)(ii) of the Federal Court of Australia Act. This latter provision empowers a single judge to 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.

5    While s 25(2B)(bb)(ii) refers in its terms only to the dismissal of an appeal, s 25(2BA) of that Act provides that in s 25(2B) a reference to an appeal includes a reference to an application of the kind mentioned in s 25(2). Section 25(2) refers to applications for an extension of time and for leave to appeal. Section 25(2B)(bb)(ii) therefore would apply in the present case, as would r 35.33 of the Federal Court Rules.

6    In the circumstances of this case, it seems to me that it would be most appropriate to dismiss the application for an extension of time and leave to appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act, having regard to the fact that the applicant did not appear at the hearing today and the following facts.

7    First, the applicant has been given adequate notice that his application was to be heard today. On 6 February 2019, Registrar McCormick made directions for the hearing and conduct of this application, including that the lawyers for the Minister notify each other party in writing of the date to be fixed by the Court for the hearing of the application.

8    Leaving aside earlier items of correspondence, I note that on 24 July 2019 and 30 July 2019, Chambers notified the applicant via email that his hearing had been listed for 5 December 2019 at 10:15 am. The latter email had a letter attached to it, which was also sent by post on 30 July 2019 to the street address provided by the applicant. This letter stated that it was important that the applicant attend his hearing, and that if he did not do so, the Court might proceed in his absence. In an email sent to Chambers on 30 July 2019 the applicant confirmed receipt of the emails sent on 24 and 30 July 2019.

9    On 1 November 2019, Chambers staff sent the applicant an email proposing that his hearing would be re-listed for today, 24 February 2020. On 7 November 2019, Chambers staff sent the applicant an email stating that his hearing had been re-listed for the new date. On the same day, the applicant confirmed receipt of the email sent on 7 November 2019. On 12 December 2019, Chambers staff sent the applicant an email reminding him that his hearing on 24 February 2020 would be proceeding, that it was important he attend, and that if he did not attend, the Court may proceed in his absence.

10    On 14 February 2020, Chambers staff sent the applicant a further email reminding him that his hearing was today, 24 February 2020 at 10:15 am; that it was important he attend his hearing, and that if he did not attend, the Court might proceed in his absence. A letter was also sent to the street address provided by the applicant on 17 February 2020 repeating these matters.

11    The Minister has also advised the applicant of the hearing today. In serving on the applicant his submissions dated 14 February 2020, the Minister advised, in paragraph 2 of those submissions, that this application had been listed for hearing at 10.15 am on 24 February 2020. In a covering letter also dated 14 February 2020, the Minister's lawyers advised:

We refer to the above matter and enclose by way of service the first respondent's submissions dated 14 February 2020 as filed in the Federal Court. Please contact [the named author] if you have any queries.

12    The Court has not received any further communication from the applicant, and the applicant has not attended today. In the circumstances I have outlined, I would dismiss the application as the Minister has sought. I am fortified in my view that this is the appropriate order to make by the apparent lack of merits in the present application, and I propose to explain hereafter my reasons for arriving at this view.

Background

13    The applicant arrived in Australia on 28 January 2011 on a Student (Subclass 472) visa, which expired on 12 June 2013. The applicant subsequently applied for a Protection (Class XA) visa on 13 June 2013. That application was refused by the Minister’s delegate on 12 November 2014.

14    On 2 February 2016, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent partner visa). In making this application, he relied on his relationship with an Australian citizen, who was his sponsor for the application.

15    On 17 October 2016, a delegate of the respondent Minister refused the application for the temporary partner visa, on the basis that the applicant did not satisfy the criteria in cl 820.211 in Sch 2 of the Migration Regulations 1994 (Cth) since he did not satisfy the criteria in cl 3001 of Sch 3 of those Regulations. The delegate also refused the application for the permanent partner visa, on the basis that the applicant did not hold a temporary partner visa as required by the Migration Regulations.

16    On 2 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision. On 22 February 2017, the Tribunal invited the applicant to attend a hearing in Melbourne on 10 April 2017. On 24 February 2017, the applicant telephoned the Tribunal and confirmed he had received the invitation. The applicant confirmed on 8 March 2017 that he and his sponsor would attend the hearing. Reminders were subsequently sent to the mobile number provided by the applicant to the Tribunal, although they were unable to be delivered.

17    On 5 April 2011, the applicant attempted to contact a case officer responsible for the grant of a separate bridging visa, rather than the Tribunal, seeking an adjournment of the forthcoming Tribunal hearing. No communication was sent to the Tribunal at this time.

18    On 10 April 2017, pursuant to s 362B(1A)(b) of the Migration Act, the Tribunal dismissed the application for review of the delegate’s decision because the applicant failed to attend the hearing and the Tribunal had not been given any satisfactory reason for his non-attendance.

19    The applicant was informed of this decision by email dated 24 April 2017. He was also informed that he could apply to the Tribunal for reinstatement of his review application within 14 days of receipt of the Tribunal’s decision. That email stated that failure to apply for reinstatement within the 14-day period would result in confirmation of the dismissal decision. The applicant did not apply for reinstatement.

20    On 9 May 2017, having heard nothing from the applicant, the Tribunal confirmed the dismissal of the application for review pursuant to s 362B(1E) of the Migration Act.

21    On 13 June 2017, the applicant applied to the Federal Circuit Court for judicial review of the decision of 9 May 2017. On 23 March 2018, the Minister’s solicitors invited the applicant, by letter, to amend his application to seek review of both the Tribunal’s decisions, including the decision of 10 April 2017. The applicant took no action in response to this invitation.

22    On Friday, 31 August 2018, at 5pm, the applicant emailed the Federal Circuit Court seeking an adjournment of the hearing fixed for Monday 3 September 2018, on the basis that he was prevented from appearing before the Federal Circuit Court on that day due to “a medical condition that requires investigation which will require an adjournment until after 10 September 2018”. Various documents were attached, including a medical certificate completed on 31 August 2018, stating that the applicant “has a medical condition and will be unfit for work or study from Friday, 31 August 2018 to Monday 10 September 2018 inclusive”. The primary judge also stated (at [7]) that:

Additionally included were a Clinical Labs general pathology request form pertaining to the Applicant undergoing a blood test, with the clinical notes being “health check tiredness”; a Richmond Family Medical Clinic receipt for the Applicant’s attendance upon Dr Huy Tan Nguyen in respect of a payment by the Applicant of $50; and a referral for the Applicant from Dr Huy Tan Nguyen to Dr David Cunnington being a sleep apnoea diagnostic referral.

23    The first respondent’s solicitors replied to the applicant, stating that the first respondent did not consent to the applicant’s request for an adjournment. The applicant made no response, and did not attend the hearing on 3 September 2018.

24    The primary judge went on to state (at [10]):

The Court considered the Applicant’s reasons for not attending the hearing to be wholly inadequate. The materials provided by the Applicant did not contain sufficient information to have any “meaningful” bearing on the Applicant’s claimed inability to appear, as that term was used by Pagone J in MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 when summarising the decision of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, wherein Lindgren J considered the circumstances in which a medical certificate could be used to justify an Applicant’s inability to appear in Court. His Honour described, at paragraph 6, the need for the medical certificate to address the “critical question” being:

“whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.”

25    As already noted, the applicant’s judicial review application was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules due to his failure to appear at the hearing on 3 September 2018.

26    On 11 October 2018, the applicant filed an application for reinstatement of his application for judicial review. This application was supported by an affidavit referring to his earlier request for an adjournment. The applicant was also permitted to rely on the documents that he had sent to the Court and the first respondent in support of his application for an adjournment on 31 August 2018.

27    The primary judge dismissed the applicant’s reinstatement application, holding (at [12]) that “there was, and is, no adequate reason for the Applicant’s failure to attend Court on 3 September 2018” and that “it is not in the interests of the administration of justice for the application to be reinstated because the substantive application is not arguable”.

28    As already stated, the applicant filed this application for an extension of time and leave to appeal on 7 January 2019. That application states as follows:

1.    My application to the Federal Circuit Court was refused on 22 November 2018

2.    When this happened I checked my visa status on the Immigration VEVO system it told me that my bridging visa expires on 20 December 2018 which I took to be the date I must lodge my Federal Court application

3.    On 18 December 2018 I got a quote from a lawyer to represent me and the lawyer told me that I needed to lodge this application within 21 days and to lodge straight away with a request of an extension of time which I did on 20 December

4.    On 20 December I was told at the Court that the forms I used were wrong and was given these forms to lodge which I am now doing

29    In support of his application, the applicant filed an affidavit on 7 January 2019 substantially stating the same thing. No further written submissions were filed by the applicant in support of his application.

30    The Minister filed written submissions in response to the application on 14 February 2020, which he relied on at the hearing.

Consideration

31    The principles applicable to the exercise of the Court’s discretion to grant an exercise of time in which to appeal pursuant to r 35.14 are well-established: see, for example, Nugawela v Commissioner of Taxation [2019] FCAFC 206. So too are the principles applicable to an application for leave to appeal.

32    In written submissions filed in opposition to the application before the Court, the Minister conceded that the applicant’s delay was not long; that some explanation had been given for the delay; and that the prejudice to the Minister if an extension of time was granted was minimal. In these circumstances, the question whether an extension of time should be granted turns very largely on the prospective merits of the proposed appeal. As will be seen, the same considerations would dictate the outcome of a grant of leave to appeal.

33    Besides a supporting affidavit, the applicant filed a draft notice of appeal, in the following terms. This indicated that the applicant’s proposed grounds of appeal were:

1.    The decision of the AAT and the FCCA is affected by jurisdictional error.

2.    The AAT and/or the FCCA took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.

3.    The AAT and/or the FCCA did not conduct a hearing in a fair and just manner and/or according to law.

4.    The AAT and/or FCCA hearing and decision is unreasonable in all circumstances of the case.

5.    The AAT and/or the FCCA erred in law and/or fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented.

6.    The AAT and/or the FCCA erred in law and or fact, and thereby fell into jurisdictional error, when it summarily dismissed the evidence presented.

7.    The FCCA failed to take all the above into account and thereby erred and such to dismiss my appeal is wrong in law and or fact and/or unreasonable.

34    These proposed grounds were misconceived in so far as they directly challenged any decision of the AAT. I would treat them as challenging the exercise by the primary judge of the discretion not to reinstate the applicant’s judicial review application.

35    A challenge to the exercise by the primary judge of the discretion not to reinstate a proceeding is governed by the principles set forth in House v The King (1936) 55 CLR 499 at 504-505. In considering the question of reinstatement, the primary judge was required to determine whether or not reinstatement was in the interests of justice: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50]. In conformity with the approach ordinarily adopted, the primary judge considered: (a) whether there was a reasonable excuse for the applicant’s absence from the hearing in which the proceeding was dismissed for non-appearance; and (b) whether the applicant has a reasonably arguable prospect of success on the substantive application: see, for example, MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. It was unnecessary in this case for her Honour to address the other frequently addressed consideration, namely, the nature of any prejudice that might flow to the Minister from the reinstatement. It may be accepted that her Honour proceeded on the basis that there was none.

36    As already indicated, the primary judge found that the applicant had not advanced an adequate reason for his failure to attend because he had failed to show whether and for what reason his medical condition would prevent him from travelling to court and participating effectively in the hearing. I can discern no error in her Honour’s finding in this regard. None of the medical documents adequately addressed these issues.

37    The primary judge also held that the substantive application was not arguable. Her Honour reached this conclusion after examining the apparent merit of the applicant’s judicial review application. Although the applicant had not sought review of the 10 April 2017 decision, her Honour found (at [36]) that there was nothing in the evidence before the Federal Circuit Court to indicate that the Tribunal was in breach of the requirements in Part 5, Division 5 of the Migration Act with respect to that decision or the subsequent decision of 9 May 2017. The primary judge found (at [40]):

There is no evidence before the Court that the Tribunal was made aware of the Applicant’s request, to “Carolyn”, for an adjournment. It cannot be found that the Tribunal failed to afford procedural fairness to the Applicant in proceeding to make a decision pursuant to s 362B(1A)(b) of the Act rather than adjourning the hearing, on this basis.

38    Her Honour continued (at [41]-[42]):

The Applicant was invited to a hearing pursuant to s 360 of the Act and he did not appear. The Tribunal had the power, in those circumstances, by written statement under s 362C of the Act to dismiss the application without any consideration of the application or information before the Tribunal. Furthermore, the Tribunal’s statement dated 10 April 2017 complied with the requirements of s 362C(2) of the Act.

By its email to the Applicant on 24 April 2017, the Tribunal complied with the requirements in s 362C(5) and (6) of the Act.

(Citations omitted)

39    As to the 9 May 2017 decision, her Honour said (at [43]-[44]):

As the Applicant did not apply for reinstatement of the application, the Tribunal was required to confirm the dismissal of the application by written statement under s 368 of the Act. …

It is apparent that the Tribunal correctly applied the law that was relevant to its decision, that being governed by s 362B of the Act.

(Citations omitted)

40    There is no indication of any error in her Honour’s finding that the Tribunal complied with the statutory scheme in ss 362B and 362C of the Migration Act when it made the original and confirmation decisions. Since the applicant had not applied to have his Tribunal application reinstated, the Tribunal was required by s 362B(1E) to confirm the dismissal of the application in the decision of 9 May 2017.

41    The primary judge also considered whether the applicant’s case was affected by the considerations discussed in Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508. Her Honour explained that this issue had become relevant because (at [46]):

During the course of the proceedings, the First Respondent brought to the Court’s attention that the Tribunal had regard to the Department’s movement records on the day of the Tribunal hearing (‘movement records’). Those movement records demonstrated that the Applicant was offshore at the time of the Tribunal hearing and that his bridging visa was in effect until 28 April 2017, being some 14 days after the hearing date.

42    As her Honour correctly stated, in Malecaj, Pagone J held that the Tribunal unreasonably exercised its discretion to proceed to make a decision without taking further action to allow or enable the applicant to appear before it, in circumstances where it was aware that the applicant did not receive the hearing invitation and was unable to attend the hearing because he was lawfully and temporarily absent from Australia.

43    The circumstances that were said (at [48]) to distinguish the applicant’s case from Malecaj were as follows:

(a)    the Tribunal sent the Applicant an acknowledgement letter dated 4 November 2016 which stated if he decided to travel overseas he should advise the Tribunal of the approximate travel dates for his travel and his overseas contact details;

(b)    on 24 February 2017 the Applicant telephoned the Tribunal and indicated that he had received the hearing invitation;

(c)    on 28 February 2017, the Department informed the Applicant that he was responsible for informing the Tribunal of his travel dates as there is a possibility that he may be contacted for an interview. The letter also stated that for the relevant contact details, the Applicant should consult the letter he received from the Tribunal;

(d)    on 8 March 2017, the Applicant returned a response to hearing invitation form which indicated that he would attend the hearing on 10 April 2017; and

(e)    the Tribunal elected to dismiss the application for review under s 362B of the Act rather than to make a decision on the review and therefore the application was subject to a right to seek reinstatement. The Applicant did not make such an election.

44    In these circumstances, the primary judge determined that the applicant’s case was different to Malecaj. I can discern no error in her Honour’s conclusion. I can also discern no error in her Honour’s subsequent conclusion that the Tribunal did not act unreasonably, in the circumstances of the applicant’s case, in exercising its discretion to proceed to dismiss the application for review.

45    In all the circumstances, it was open to the primary judge to conclude that it was not in the interests of the administration of justice to reinstate the proceeding and her Honour’s decision does not disclose any error of the kind contemplated in House v The King. In particular, the applicant has failed to identify that the primary judge took into account irrelevant considerations and failed to take into account relevant ones; that her Honour’s decision was unreasonable in the relevant sense; or affected by any other error. The proposed appeal would appear to have no prospects of success. This fortifies my conclusion that this is an appropriate case to dismiss the current application for want of appearance.

46    If the extension of time were to be granted, it is clear that, for the reasons I have expressed, the decision of the primary judge is not attended by sufficient doubt to warrant reconsideration on appeal (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399); and that leave to appeal should not be granted.

Disposition

47    I would, accordingly, dismiss the application for an extension of time and leave to appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act, with costs.

Associate:

Dated:    24 February 2020