Federal Court of Australia

ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review made pursuant to s 39B of the Judiciary Act 1903 (Cth) be dismissed in accordance with rule 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) on the basis that the applicant is in default for the purposes of rule 5.22(c) of the Federal Court Rules.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

3.    For the purposes of any application to set aside or vary these orders, time will not commence to run until the day after the date on which written reasons are published.

THE COURT NOTES THAT:

4.    When the matter was called on for a first case management hearing at approximately 9.48am on 6 July 2022, there was no appearance for the applicant.

5.    Reasons for the ex tempore judgment delivered by Justice Perry on 6 July 2022 will be published and circulated to the parties as soon as possible, and in any event no later than the week commencing 11 July 2022, explaining the basis on which the orders above have been made.

6.    The Court notes that the applicant may make an application to set aside or vary these orders.

7.    A copy of rules 5.22 and 5.23 of the Federal Court Rules is attached to these orders.

ANNEXURE A

Federal Court Rules 2011 (Cth)

…

5.22  When a party is in default

                   A party is in default if the party fails to:

                     (a)  do an act required to be done, or to do an act in the time required, by these Rules; or

                     (b)  comply with an order of the Court; or

                     (c)  attend a hearing in the proceeding; or

                     (d)  prosecute or defend the proceeding with due diligence.

5.23  Orders on default

             (1)  If an applicant is in default, a respondent may apply to the Court for an order that:

                     (a)  a step in the proceeding be taken within a specified time; or

                     (b)  the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

                              (i)  immediately; or

                             (ii)  on conditions specified in the order.

             (2)  If a respondent is in default, an applicant may apply to the Court for:

                     (a)  an order that a step in the proceeding be taken within a specified time; or

                     (b)  if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

                              (i)  the debt or liquidated damages; and

                             (ii)  if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

                     (c)  if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

                     (d)  an order giving judgment against the respondent for damages to be assessed, or any other order; or

                     (e)  an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

Note 1:       The Court may make any order that the Court considers appropriate in the interests of justice—see rule 1.32.

Note 2:       An order or judgment under this Division may be set aside or varied.

…

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 the transcript)

PERRY J:

1    The applicant is a citizen of the People’s Republic of China. He does not have legal representation and is currently not in immigration detention. The application concerns a determination dated 22 November 2021 by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), that he has no power to intervene in the applicant’s matter pursuant to section 417 of the Migration Act 1958 (Cth) (the Act) on the basis that that power is available only if the second respondent, the Administrative Appeals Tribunal (the Tribunal), has made a decision under section 415 of the Act.

2    In the letter advising of the Minister’s determination, the departmental officer further explained that the Tribunal had not made such a decision because the applicant’s application for review was lodged outside the statutory limitation period and therefore was not accepted.

3    The first respondent is represented by Mills Oakley. The second respondent has filed a submitting appearance, save as to costs. When the matter was called on for case management on the morning of 6 July 2022 pursuant to an order of the Court made on 10 June 2022, the applicant did not appear before the Court.

4    In those circumstances, the applicant is in default for the purposes of rule 5.22(c) of the Federal Court Rules 2011 (Cth) (Federal Court Rules), which provides that, “A party is in default if the party fails to: … (c) attend a hearing in the proceeding.”

5    Upon confirmation that the appellant was not present on the first case management hearing, which was held by audio-visual means on 6 July 2022 with the assistance of the Mandarin interpreter who attended also at the hearing, the Minister applied for judgment orders on default under rule 5.23(1)(b) of the Federal Court Rules.

6    I consider that this is a matter in which it is appropriate to make that order, having regard to the following considerations.

7    First, on 15 March 2022, a staff member of the Registry who is a Mandarin speaker attempted to contact the applicant by calling the mobile phone number provided by the applicant in his originating application to advise him of the first case management hearing, but that attempt was unsuccessful.

8    Secondly, the matter was listed for the case management hearing on the morning of 6 July 2022 at 9.45am by orders made on 10 June 2022. A copy of those orders was provided to the parties by email on 14 June 2022, which were, relevantly, addressed to the email address provided by the applicant in his originating application.

9    Thirdly, on 23 June 2022, Mills Oakley wrote to the applicant with respect to the proceeding, advising that the matter was listed for a case management hearing on 6 July 2022 at 9:45am before me by Microsoft Teams and that the details for connecting to the case management hearing would be sent to the parties before that date. The letter from Mills Oakley to the applicant further advised that:

On 6 April 2022, the solicitors for the Minister wrote to you outlining the Minister’s view in relation to your application (further copy enclosed). No response by you was received to that correspondence. Nor have you responded to any of the correspondence sent to you by the Court to your nominated email address in relation to progressing the matter to a hearing. If your contact details have changed, you should take immediate steps to file and serve a Notice of address for service with your updated contact details.

…

You are required to attend the case management hearing on 6 July 2022. If there is no appearance by you or on your behalf, then the respondent may, without further notice to you, seek orders that your application be dismissed with costs pursuant to r 5.22(c) and r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) and/or s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth).

Please note we may rely on this correspondence, including in support of any application for costs.

(Emphasis in bold in the original; emphasis in bold and italics added.)

10    The letter identified the lawyer with responsibility for handling the matter on behalf of the Minister, and included that lawyer’s telephone number and email address, as well as the email address of another individual within that firm and a fax number.

11    That letter was sent by post to the address for service provided by the applicant in his originating application, and was also sent by email to the email address provided by the applicant in his originating application. In those circumstances, I am satisfied that the applicant was provided with notice of the case management hearing on 6 July 2022, not only by the Registry but also by the Minister’s solicitors, and that he was put on notice that the Minister might seek orders dismissing the application if he failed to appear.

12    Fourthly, an email was sent to the parties from the Registry on 4 July 2022 at 1:22pm, referring to the case management hearing to be held on 6 July 2022 at 9:45am via Microsoft Teams. That email also advised the applicant that the Court had arranged for an interpreter fluent in Mandarin Chinese to attend the case management hearing and that the interpreter would be in contact with him prior to the case management hearing. In addition, the email provided the link by which the parties would join the Microsoft Teams meeting for the case management hearing, as well as a telephone number and phone conference ID number in the event that any party wished to attend the case management hearing by audio only.

13    Finally, the Registry wrote again to the parties by email on 5 July 2022 at 2:57pm, including to the email address provided by the applicant in his originating application, confirming receipt of an earlier email from the solicitors for the Minister advising the Court that the Minister did not anticipate any further timetabling orders would be required to prepare the matter for hearing. The Registry advised by that email that no further action by the first respondent would be required with respect to the draft orders and noted that “should the applicant wish to submit any draft orders, he may wish to do so for Justice Perry’s consideration in advance of the first case management hearing tomorrow morning”. That email also attached an updated version of the timetabling orders previously circulated with the correct stamping date. No draft orders were provided by the applicant in response to that invitation, and no response was otherwise received from him.

14    Having regard to the above evidence, it can reasonably be inferred, to the extent necessary, that the applicant does not intend to press ahead with the application.

15    In all of the circumstances, I consider it was appropriate to make the orders sought by the Minister dismissing the application in default of the applicant appearing at the first case management hearing.

Associate:

Dated:    18 July 2022