Federal Court of Australia

DCI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1261

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the appeal be dismissed.

2.    The appellant do pay the costs of the first respondent to be assessed on a lump sum basis by a Registrar unless agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant is a citizen of India. He came to Australia in 2009 on a student visa which ceased in 2010 after his enrolment was cancelled. He overstayed and became an unlawful non-citizen. In 2018 he was taken into administrative detention. In April 2019 he lodged an application for a protection visa. His application was refused. He sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision to refuse his visa application.

2    Before the Tribunal there were three hearings. The first hearing was adjourned to obtain information that was relevant to claims made by the appellant about his mental health. The appellant provided information at the second hearing which led to the matter be adjourned to a further hearing. The reasons of the Tribunal record the basis for the appellant's claims to protection. They allege a risk of persecution by his Hindu family based on his Christian religious beliefs, fear that his daughter's life will be in danger if he is forcibly removed and that it would be mentally hard for him to cope with relocation due to acute depression and anxiety. He also alleged that he could not relocate to Nepal away from his family.

3    The Tribunal considered each of the appellant's claims and rejected each of them providing reasons as to each aspect of the claim to protection. The Tribunal's decision was made on 18 July 2019 and written reasons were provided on 9 August 2019.

4    The appellant then sought review in the Federal Circuit Court for alleged jurisdictional error by the Tribunal. His application was heard on 13 February 2020. The appellant sought an adjournment. The application for an adjournment was refused and the substantive application was dismissed.

5    On 10 March 2020, the appellant filed a notice of appeal. The notice was prepared by the appellant on his own behalf. It sets out 24 enumerated paragraphs which are said to be the grounds of appeal. However, they do not state alleged grounds of appeal against the decision by the Circuit Court judge. Instead they specify grounds upon which it is claimed that the Tribunal's decision should be quashed. For the most part they reflect the grounds stated in the application for review filed in the Circuit Court.

6    The notice of appeal provides an email address, a telephone number and an address for service in Victoria. The Court has sent communications to the appellant at the email address provided.

7    Listing of the matter was delayed due to the precautions being taken by reason of the COVID-19 pandemic. A hearing date was allocated for the appeal to be heard in person in Melbourne on 18 August 2021. Due to movement restrictions at that time, the appeal could not proceed in person. Attempts were made to convene a virtual hearing using the Teams platform in accordance with the practice of the Court described in the Special Measures Information Note (SMIN-1). No response was received from the appellant concerning those arrangements and the hearing date was vacated.

8    The parties were requested to provide unavailable dates for the relisting of the hearing of the appeal. There was no response from the appellant. On 23 August 2021 an email was sent to the parties advising that the appeal had been relisted for hearing on 15 October 2021 and that arrangements would be made for the parties to appear in a courtroom in Melbourne with a video link to Perth.

9    On 6 October 2021, emails were sent to the parties advising that due to restrictions on movement in Victoria the hearing would be conducted remotely and would commence at 8.00 am AWST.

10    The solicitors for the Minister sought to contact the appellant by email and by telephone to confirm that he would be appearing. There was no response to the email and the telephone number that had been provided by the appellant in his application was notified as being disconnected. Instructions were sought by the solicitors from a delegate of the Minister as to whether the appellant had provided any updated contact details to the Minister's department. No such contact information has been provided.

11    On 12 October 2021, Perth Registry sent an email to the applicant inviting him to participate in a test call using Microsoft Teams. Registry attempted to telephone the appellant on two occasions but on each occasion was notified that the number was disconnected.

12    On 14 October 2021, formal orders were made for the hearing to proceed using Microsoft Teams and an email was sent to the appellant notifying the link to join the hearing and of the terms of the orders. The email stated that the appellant should join 10 minutes before the hearing to establish the link and to contact my associate at the details provided if there was any difficulty in joining the hearing.

13    It can be seen that there has been no response by the appellant to any of the attempts to contact him. The appellant did not join the Teams hearing 10 minutes before the hearing or at any time thereafter.

14    In the above circumstances, the Minister sought an order dismissing the appeal for failure by the appellant to attend at the hearing. Despite proceeding by way of a Teams hearing, the proceedings were in open Court with arrangements made for attendance by the public by the making of orders for that purpose and notification to the public of the means by which they could join the Teams platform and observe the hearing.

15    The appellant's grounds of appeal comprise unparticularised assertions of error. Grounds expressed in those terms may be dismissed as failing to demonstrate a basis for review: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ). The appellant has filed no submissions in the appeal despite a timetable being set for him to do so.

16    Had the appellant appeared in person, I would have explained to the appellant the need to particularise error and afforded him an opportunity to explain any basis for his appeal. However, as he has not appeared that course is not open. Nor is it possible to discern any real basis for the appeal from the unparticularised assertions of reviewable error that were before the Circuit Court.

17    I make those observations concerning the form of the grounds of appeal only for the purposes of considering whether, in all the circumstances, it is appropriate to exercise the power to dismiss the appeal for failure by the appellant to attend.

18    On the basis of the above matters, I was satisfied that the appellant had been notified of the hearing, he had been given an adequate opportunity to attend, there was no evident explanation as to his failure to appear and there was no reason evident from the nature of the appeal as to why the hearing of the matter ought be adjourned. For those reasons, I made the order sought by the Minister. The Minister sought an order for costs. The Minister having obtained an order that the appeal be dismissed and there being no evident basis for the making of any order other than one which provided for costs to follow the event, I made an order that the costs of the appeal be paid by the appellant on a lump sum basis to be assessed by a Registrar if not agreed.

Associate:

Dated:    15 October 2021