Federal Court of Australia

EJE20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1438

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Subject to order 4, the application be dismissed, under r 35.33(1)(a)(i), with costs.

3.    The first respondent forthwith serve a copy of these orders on the applicant:

(a)    by email; and

(b)    physically;

at the addresses recorded on the application for an extension of time and leave to appeal filed on 19 May 2021.

4.    The applicant has liberty to apply, within 14 days of these orders being served in accordance with order 3, to vary or set aside order 2 by reason of good cause.

5.    Upon receipt of judgment, the first respondent forthwith serve a copy of these reasons on the applicant:

(a)    by email; and

(b)    physically;

at the addresses recorded on the application for an extension of time and leave to appeal filed on 19 May 2021.

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)

RAPER J:

1    The applicant seeks an extension of time and leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) summarily dismissing his judicial review application on the basis that he had no reasonable prospect of successfully prosecuting the proceeding. The applicant had sought remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal that it did not have jurisdiction to entertain an application for review of a decision of a delegate of the Minister not to grant the applicant a Protection (subclass 866) visa.

2    The judgment from which the applicant seeks to appeal was handed down on 16 April 2021. The applicant was required to file any application for leave to appeal within 14 days of that date: Federal Court Rules 2011 (Cth) r 35.13. This meant that he was required to file his application on or before 30 April 2021. However, he filed the present application on 19 May 2021, 19 days out of time. Accordingly, because the applicant did not file an application for leave to appeal within the required period, he requires an extension of time to file his application for leave to appeal.

3    The applicant did not attend the hearing today and therefore the issue to determine is whether the applicant’s application should be dismissed under r 35.33(1)(a)(i) of the Rules by reason of his non-attendance. For the following reasons, I am satisfied that the application ought to be dismissed.

The applicant’s details on the application

4    The application records the applicant’s name, phone number, email address and physical address.

5    Rule 11.01(5) of the Rules provides that, if a party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address: ALD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735 at [3]; EEP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 793 at [3].

Correspondence with the applicant regarding these proceedings

6    This matter was docketed to me on 28 September 2023. From my observation of the file, I note the following relevant interaction history between the applicant and this Court’s Registry before the matter was allocated to me and after allocation.

7    On 20 May 2021, the day after the applicant filed his application, a staff member of the National Migration Team of the Court sent an email to the applicant, using the email address the applicant provided on the application, informing him that his application had been accepted for filing. This email also provided the applicant with a file number and a fact sheet providing general information to the applicant about the procedural steps that applicants in migration cases need to take in relation to their proceedings. This document also informed the applicant about costs, court fees and relevant contact details.

8    On 25 May 2021, the National Operations Team of the Federal Court wrote to the applicant and the Minister’s representatives attaching directions of a Registrar which timetabled the matter, and a guide to preparing submissions in the Federal Court.

9    Due to restrictions on in-person hearings during the Covid-19 pandemic, appeals involving self-represented parties, especially those involving interpreters, were not allocated to judges’ dockets during 2020 and 2021. This resulted in a backlog of migration cases, which the Court has since been working through.

10    On 27 July 2023, the Court informed the parties that it was considering listing the matter for hearing in November 2023, and sought their availability for hearing by 4 August 2023. The Minister responded to that email on 31 July 2023, but no response was received from the applicant.

11    On 29 September 2023, the National Operations Team wrote to the parties listing the matter for hearing on 20 November 2023 and providing further guidance on preparing for the hearing. The email included the following warning:

Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.

12    At hearing today, the Minister tendered additional correspondence as between the parties of 23 October 2023. In that correspondence, the Minister provided a copy of its submissions in relation to the matter. It noted again the listing of the matter on 20 November 2023 at 2:15pm and that the matter was to be in-person. In addition, it made the following observation:

Please note that you are required to attend the scheduled hearing and if there is no appearance, the first respondent may without further notice seek orders that your application be dismissed with costs.

13    On 8 November 2023, the Registry sent two emails to the parties reminding them of the hearing date and the requirement that parties attend. In the first email, the Court noted that the applicant had been required to file any submissions two days earlier, and had not done so. The email also asked the Minister to provide their most recent contact details for the applicant and confirmation of whether the applicant was still in Australia. The Minister’s representative did so by reply email to the Registry on the same day, providing the same contact details as the Court had on file for the applicant and confirming that she was instructed that the applicant remained onshore.

14    Later that same day, the Registry sent a further email to the parties again reminding them of the hearing date and the expectation that they attend. This email also noted that the applicant should be aware that, if he did not attend the hearing, the Minister might ask the Court to dismiss the proceedings in his absence by reason of his non-attendance.

15    The Court received no correspondence from the applicant at any point after he filed his application and the accompanying affidavit on 19 May 2021.

Dismissing an application on the basis that a party is absent: r 35.33(1)(a)(i)

16    Rule 35.33(1)(a)(i) of the Rules provides that, if an applicant is absent when an application under, relevantly for this case, r 35.14 is called on for hearing, any other party may apply to the Court for an order that the application be dismissed.

17    As outlined above, the applicant has not engaged with any communications from the Court since filing his application on 19 May 2021. Over this period, the Court has made several attempts to contact the applicant using the email address that he provided on his application.

18    In addition, the Court has twice informed the applicant that non-attendance at the hearing may result in orders being made in his absence. Further, the Minister has done the same, as contained in the Minister’s correspondence dated 23 October 2023.

19    Despite the abovementioned correspondence being sent to the applicant using the email address provided, he did not attend the hearing. The matter was called for hearing in the court room at 2:15pm, and then three times outside the court room, and there was no appearance by the applicant. No explanation was provided for the applicant’s absence.

20    It may be inferred from the applicant’s lack of communication with the Court and the Minister’s representative since filing, or by his failure to notify the Court of any change in his contact details, that the applicant either does not intend to pursue any further his application or has failed to conduct his matter with due dispatch. As observed in EEP18 at [40], all parties have a responsibility to conduct their affairs before the Court with due dispatch. This means that they must adhere to their obligations to prosecute their claim in a timely manner and to attend the hearing of their matter.

21    For these reasons, I am satisfied that the application should be dismissed under r 35.33(1)(a)(i) with costs.

22    Finally, I note that rule 35.33(2) provides that the applicant may apply to set aside or vary the order dismissing the application (r 35.33(2)(a)) or for the further conduct of the proceeding (r 35.33(2)(b)).

23    Accordingly, I require that the Minister serve a copy of these orders on the applicant, both personally and by email, and the applicant be granted liberty to apply within 14 days of these orders being served to vary or set aside the order dismissing the application with costs by reason of good cause.

Associate:

Dated:    20 November 2023