Federal Court of Australia

ELQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1615

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the Appellant’s appeal, from the orders of Judge Blake of the Federal Circuit Court of Australia (as it was then known) dated 13 November 2020, be dismissed.

2.    The Appellant pay the First Respondent’s costs fixed in the sum of $3,308.47.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

Introduction

1    On 2 August 2018, the Immigration Assessment Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to grant the Appellant a Safe Haven Enterprise visa under s 65 of the Migration Act 1958 (Cth).

2    On 13 November 2020, the Federal Circuit Court of Australia (as it was then known) dismissed an application for judicial review of the Authority’s decision: ELQ18 v Minister for Home Affairs [2020] FCCA 3080. By Notice of Appeal dated 7 December 2020, the Appellant now appeals from that decision.

3    For the reasons that follow, the appeal is dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) on the basis of the non-appearance of the Appellant.

Background

4    On 18 June 2021, my chambers contacted the parties in this matter to organise a listing date suitable to both the Appellant and the Minister. On 18 June 2021, the Minister confirmed via email that he was available on 14 October 2021.

5    On 22 June 2021, the Appellant also confirmed his availability for a hearing on 14 October 2021, writing as follows to my chambers:

Sir/mom

There has been a slight delay due to the need for a lawyer. apologies me And October 14, 2021 is the right day for me. So I ask you to choose it. thankfully

Regarding

<REDACTED>

6    Based on that information, the matter was listed for hearing on 14 October 2021 at 10:15am. My chambers notified all parties accordingly.

7    On 2 August 2021, Mr Luke McLean of Victoria Legal Aid wrote an email to the National Migration Team at the Federal Court of Australia. The email read:

Dear team

Victoria Legal Aid is assisting the appellant in this matter <REDACTED> (authority attached).

The appellant believes that his matter may have been listed for a final hearing on 14 October 2021. I would be grateful if this could be confirmed.

8    My staff were not copied into this email nor were they made aware of its contents until a later date.

9    On 2 August 2021, the National Migration Team responded to Mr McLean’s email confirming that the proceeding was listed for hearing on 14 October 2021. Again, my staff were not copied into this email nor were they made aware of its contents until a later date.

10    On 6 October 2021, approximately one week prior to the hearing, Mr Matthew Daly of Mills Oakley wrote to my chambers, copying in Mr McLean:

Dear Associate

Cc Appellant; VLA

We note that we have not heard directly from the appellant in this matter since 22 June 2021, being the date on which he confirmed he was available for a hearing on 14 October 2021.

On 2 August 2021, Luke McLean of Victoria Legal Aid (VLA) wrote to the court to indicate that VLA was assisting the appellant and provided an authority to act (attached). However, a notice of acting was not filed on the Commonwealth Courts Portal and we are not aware of any other correspondence from the appellant or those assisting him since this time.

11    Mr McLean responded on the same day in an email addressed to the Appellant, the solicitors acting for the Minister and my chambers stating:

Dear Associate

I confirm that Victoria Legal Aid does not act for the appellant in this matter.

Please contact me if you have any queries.

12    On that same date, my chambers twice attempted to contact the Appellant by telephone on the mobile number provided on documents lodged with the Court. Those calls went unanswered and the number appeared to be disconnected. The Registry also attempted to contact the Appellant but was similarly unable to reach him on the mobile number provided.

13    Further, an email was sent from my chambers to the parties on 6 October 2021, notifying the Appellant that he had not complied with orders made on 15 December 2020 by Registrar McCormick. In those circumstances, my chambers requested that the Appellant file submissions by no later than 4pm on Friday, 8 October 2021. Further, my chambers asked the Appellant to confirm:

(1)    receipt of the email;

(2)    whether he had obtained legal representation; and

(3)    whether he required a Tamil interpreter for the hearing on 14 October 2021.

14    The Appellant did not reply to this email. Further, as alluded to in the correspondence from Mr Daly, Mills Oakley confirmed that they had not heard directly from the Appellant since 22 June 2021, when he confirmed his availability for a hearing on 14 October 2021.

15    When the appeal came before the Court for hearing on 14 October 2021, the Appellant failed to appear. The First Respondent applied to dismiss the appeal with costs. Notwithstanding the Appellant’s non-compliance with earlier orders and directions of the Court, and the absence of any explanation for his non-appearance, I adjourned the appeal to a date to be fixed.

16    At the hearing on 14 October 2021, I also indicated that the First Respondent would be at liberty to apply to dismiss the appeal prior to the further hearing date if the Appellant failed to file written submissions by 15 November 2021. I made orders to this effect on 25 October 2021.

17    Those orders were sent to the Appellant on 25 October 2021 and accompanied with an explanation that the appeal would likely be dismissed if there was further non-compliance with the Court’s orders.

18    At no time other than on 22 June 2021 has the Appellant communicated with my chambers, the Registry or the solicitors acting for the Minister to explain why he would be unable to attend the first hearing date or that he would be unable to file submissions within the time required by my orders dated 25 October 2021.

19    Having regard to the above matters, the Minister applied to dismiss the appeal on 9 December 2021.

Consideration

20    There are many examples of the Court exercising its power in the migration context to dismiss an appeal where the appellant does not appear to prosecute the appeal: see, eg, Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1072 at [3]-[4] (Besanko J) and CAK15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 939 at [2] (Jackson J).

21    In this instance, I am satisfied that the Appellant received adequate notice of the date and time of the first hearing, and in particular had agreed to that date and time. I am also satisfied that the Appellant was notified of the possible consequences for him if he did not attend the hearing or comply with earlier Court orders, having regard to the above correspondence.

22    Accordingly, for the reasons set out above, it is appropriate that the appeal be dismissed with an order that the Appellant pay the First Respondent’s costs of the appeal.

Associate:

Dated:    20 December 2021