Federal Court of Australia

ADR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 384

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time and leave to appeal filed on 28 October 2019 be dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the first respondent’s costs 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)

WIGNEY J:

1    The applicant in this matter has applied for an extension of time and leave to appeal an interlocutory order made by the then Federal Circuit Court of Australia. That order, which was made as long ago as 27 September 2019, was an order dismissing the applicant’s application to reinstate an application which had been dismissed on 14 August 2019 because the applicant had failed to appear at the hearing.

2    The application was listed for a case management hearing on 17 March 2022. The applicant failed to appear at the case management hearing. The respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, applied for an order that the applicant’s application be dismissed for want of prosecution pursuant to r 35.32 of the Federal Court Rules 2011 (Cth). For the reasons that follow, the Minister’s application should be granted and the applicant’s application for an extension of time and leave to appeal should be dismissed.

3    The applicant’s application for an extension of time and leave to appeal was filed on 28 October 2019. The application merely stated that the grounds of appeal, if leave to appeal was to be granted, were “Jurisdictional error and unfairness exist”. Needless to say, that ground hardly shed any light on the precise nature of the proposed appeal.

4    The application was supported by an affidavit sworn by the applicant. That affidavit was equally unhelpful and equally bereft of detail. Most significantly, it does not explain why an application for leave to appeal was not filed within time and does not provide any explanation or support for the application for an extension of time.

5    On 10 February 2020, a registrar made procedural directions to facilitate the hearing of the application. The applicant failed to comply with any of the directions requiring any action by him. On 13 December 2021, the Minister filed an affidavit affirmed by his legal representative. The Minister read that affidavit in support of his application that the applicant’s application be dismissed.

6    The affidavit proved, amongst other things, that the applicant left Australia on 6 February 2021 and has not returned. The affidavit proved that the applicant does not have a visa which would permit him to re-enter Australia. Perhaps more significantly, the contents of the affidavit demonstrated that the applicant’s application for relief in the Circuit Court, which he seeks to have reinstated, is now otiose, if not futile. That is because the application was an application for judicial review of a decision of the Administrative Appeals Tribunal to refuse the applicant’s application for a protection visa. Even if the application was reinstated and the applicant was ultimately successful, the best result for the applicant would be that his visa application would be remitted to the Minister for reconsideration. However, because the applicant is no longer in Australia, he would not be entitled to the protection visa which he originally applied for in any event.

7    On 28 January 2022, the Court’s registry contacted the parties by email to arrange for the applicant’s application to be listed for hearing. The contact details that the applicant provided to the Court only included an email address. The registry’s email was sent to that email address. The Minister’s legal representatives responded to the registry’s email; the applicant did not.

8    On 2 March 2022, the registry sent an email to the parties advising that the matter had been listed for hearing on 5 April 2022 at 10.15 am. The applicant did not respond to that email. On 3 March 2022, the Minister’s legal representative sent an email to the registry requesting that the matter be listed for a case management hearing. That email was copied to the applicant. Further email correspondence ensued in relation to the listing of the matter for a case management hearing. That email correspondence was sent to the applicant at the email address he had provided to the Court. The applicant did not, however, respond to any of those emails.

9    The parties were eventually advised that the matter had been listed for a case management hearing on 17 March 2022 at 9.30 am. The applicant did not respond to the email which advised him of that listing, nor did he respond to subsequent emails from the registry about the listing of the matter for case management. The Minister tendered further email correspondence which his legal representatives sent to the applicant at his nominated email address in relation to the case management hearing, including an email sent as recently as 16 March 2022. The applicant did not respond to that email.

10    The applicant, in short, has not made any attempt to contact the Court in relation to the original hearing date or the listing of the matter for case management hearing. As earlier noted, he failed to appear at the case management hearing. I am, in all the circumstances, satisfied that it is appropriate to dismiss the applicant’s application for an extension of time and leave to appeal pursuant to r 35.32(c) and (d). That is because the applicant has failed to attend a hearing relating to the application and he has not prosecuted the proceeding in any way since the filing of his application as long ago as October 2019.

11    As noted earlier, the applicant’s application is, in any event, essentially foredoomed to fail, not only because it is unsupported by any meaningful grounds or evidence, but because it is futile.

12    I make the following orders:

(1)    The applicant’s application for an extension of time and leave to appeal filed on 28 October 2019 be dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth).

(2)    The applicant pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    11 April 2022