Federal Court of Australia

Falaniko v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 111

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The matter be dismissed in whole for default pursuant to rule 5.23 of the Federal Court Rules 2011 (Cth).

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

THE COURT NOTES THAT:

4.    The applicant may apply for the Court to set aside these orders pursuant to rule 39.05 of the Federal Court Rules 2011 (Cth) and for his application for an extension of time filed on 30 November 2022 to be reinstated. In any such application, it may be relevant, among other things, for the applicant to provide an explanation for his non-appearance at the case management hearing on 14 February 2024 and his failure to file a notice of address for service with the Court after his solicitors ceased to act for him.

5.    A copy of rules 5.23 and 39.05 of the Federal Court Rules 2011 (Cth) is attached to these orders.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

PERRY J:

1.    INTRODUCTION

1    On 30 November 2022, the applicant filed an application for an extension of time within which to seek judicial review of the decision of the second respondent, the Administrative Appeals Tribunal given on 1 June 2022. The Tribunal affirmed a decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs dated 9 March 2022 not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

2    The matter was called on for case management this morning but there was no appearance by the applicant, despite the matter being called outside the courtroom three times. The Minister made an oral application under rule 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (the FCR) for the proceeding to be dismissed in whole immediately, on the ground that the applicant was in default as defined in the rules 5.22(c) and (d). Rule 5.22 provides that:

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.

3    In support of that application the Minister relied upon the affidavit of Madisen Anne Scott affirmed on 23 January 2024 in compliance with orders made by me on 11 December 2023. Those orders provided:

1.    On or before 4:00pm on Monday 22 January 2024, the first respondent is to file and serve an affidavit, which sets out information detailing the steps taken by the first respondent to locate and contact the applicant about the proceeding, together with any application that the first respondent might seek to make.

THE COURT NOTES THAT:

2.    The applicant has not filed a change of notice of address for service in accordance with rule 4.05(2) of the Federal Court Rules 2011 (Cth) since his lawyer filed a notice of ceasing to act on Friday 29 September 2023.

(Emphasis in original.)

4    The Minister also tendered an email from Ashley Burgess to the applicant dated 9 February 2024 at 12:37pm.

5    I agree that the application should be dismissed on these grounds for the following reasons.

2.    BACKGROUND

6    The applicant was represented by Crossover Law Group at the time of commencing this proceeding on 30 November 2022.

7    On 22 December 2022, after the relevant decision by the Tribunal, the Full Court handed down judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203. The Full Court held that an aggregate sentence to a period of imprisonment amounting to or exceeding 12 months was not a sentence “to a term of imprisonment of 12 months or more” for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth). The applicant in that case had not been sentenced to a single term of imprisonment for an offence which was 12 months or more. Accordingly, in the circumstances of that case, the applicant’s visa was not amenable to mandatory cancellation under s 501(3A) of the Act.

8    On 29 November 2022, the applicant was released from immigration detention and his visa re-‍enlivened, as a consequence of the Department of Home Affairs’ assessment that the underlying mandatory visa cancellation in this case was not validly cancelled, by reason of the error identified in Pearson: see notation to the Court’s orders dated 3 February 2023.

9    On 3 February 2023, by consent, I ordered that this matter be held in abeyance until final determination of any application for special leave to appeal to the High Court of Australia made by the Minister, challenging the judgment and orders of the Full Federal Court in Pearson, either by way of disposition of the special leave to appeal application or by way of final orders on appeal to the High Court. The parties were in agreement that this proceeding was affected by the decision in Pearson.

10    On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) relevantly came into effect. The Aggregate Sentences Act inserted s 5AB into the Act which had the effect that s 501(7)(c) applies to aggregate sentences for more than one offence. Item 4 of Sch 1 to the Aggregate Sentences Act had the effect of validating the Tribunal’s decision: see JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 at [80]–[96].

11    Between March and May 2023, WA Field Operations Team of the Australian Border Force issued multiple notices under s 18 of the Act to obtain information relating to the applicant’s location and the Department requested Centrelink disclose information about the applicant. As of 23 January 2024, nothing which had been returned to date by the organisations to whom the s 18 notices were directed, including telecommunication providers and the ANZ, has enabled the Department to locate and detain the applicant.

12    In May 2023, the responsibility for continuing investigations into the applicant's location was transferred to the NSW Field Operations Team. As of 23 January 2024, the Field Operations Team has not taken any further steps to locate the applicant “due to shifts in resourcing priorities”: affidavit of Ms Scott at [14].

13    On 25 August 2023, the solicitors for the Minister (the Australian Government Solicitor (AGS)) advised the Court that on 11 August 2023, the High Court (Kiefel CJ and Gleeson J) refused the application for special leave to appeal from the Full Court judgment in Pearson: Minister for Home Affairs & Anor v Pearson & Anor [2023] HCATrans 105.

14    On 29 September 2023, Crossover Law Group filed a notice of ceasing to act. In that notice, Crossover Law Group advised that the last known residential or business address of the applicant was the Christmas Island Detention Centre.

15    On 13 November 2023, AGS advised the Court that the applicant had not been re-detained following his release on 29 December 2022. Additionally, AGS advised of the Minister’s last known residential address and telephone number for the applicant.

16    On 14 November 2023, the Court Registry attempted to telephone the applicant. However, the telephone number appeared to be disconnected.

17    On 22 January 2024, AGS attempted to contact the mobile phone number provided by the applicant to the Tribunal in his Application for Review of Decision submitted to the Tribunal on 14 March 2022 (AAT Application), being a different telephone number from the one provided to the Court. Upon that number being called, it appeared that it was also currently disconnected.

18    On 22 January 2024, AGS sent an email to the email address provided by the applicant in his AAT Application. This email included the following:

On 29 September 2023, your former solicitor Ms Lewis filed a Notice of Ceasing to Act. She did not provide us, or the Court with any contact details for you (other than the mailing address for Christmas Island Immigration Detention Centre), but noted that she had conveyed to you the necessity of filing an updated address for service with the Court.

To date, no updated address for service has been filed. We are therefore instructed to seek for your application to be listed for a case management hearing and to seek for your application to be dismissed if you do not appear at the case management hearing.

Could you please advise us and the Court as a matter of urgency if you intend to file a Notice of Address for Service or continue to press your appeal.

19    On 9 February 2024, the matter was listed for a case management hearing on 14 February 2024. On the same day, AGS sent a second email to the email address provided by the applicant in his AAT Application advising that:

Your application has been listed for a case management hearing by Microsoft Teams not before 9:30am AEDT on Wednesday, 14 February 2024. The link to attend the Case Management Hearing is set out below.

It is very important you attend the Case Management Hearing. As we have previously advised you, if you do not attend, the Minister intends to request that your matter be dismissed, with costs ordered against you.

Please let me know if you would like to discuss this email.

(Emphasis in original.)

The email also included a copy of the Microsoft Teams link for the case management hearing.

20    The applicant has not, as at the date of the case management hearing on 14 February 2024, responded to either of AGS’s emails.

3.    DISPOSITION OF APPLICATION FOR DISMISSAL

21    In all the circumstances and especially for the four reasons below, I am satisfied that the application should be dismissed under rule 5.23 of the FCR on the grounds that the applicant has failed to attend a hearing and to prosecute the proceeding with due diligence.

22    First, the applicant failed to attend the case management hearing today.

23    Second, given the evidence which I have summarised above, I am satisfied that the Minister has taken reasonable steps to ensure that the applicant was aware of the proceeding and of the case management hearing today. The applicant has not made any contact with the Minister or the Court following his solicitors ceasing to act.

24    Third, rule 4.05 of the FCR requires a “party whose lawyer has filed a notice under paragraph (1)(b) [that is, ceasing to act] must file a notice of address for service within 5 days after the notice is filed.” The applicant has not complied with this rule to-date. Nor has the applicant taken any active step in the proceeding since his legal representative filed a notice of ceasing to act.

25    Fourth, I have taken into account that the applicant is entitled to apply to have the proceedings reinstated under rule 39.05 of the FCR, should he so wish. The question of whether the proceedings might be reinstated under that rule involves an exercise of discretion by the Court, having regard to any evidence which the applicant might lead in support of any such application, including as to the reasons for his failure to attend the hearing.

26    Accordingly, I consider that the application should be dismissed, and an order made that the applicant is to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    14 February 2024