Federal Court of Australia

EEH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 340

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for an extension of time and leave to appeal filed 29 November 2023 be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

3.    By 4.30pm (AEST) on 24 April 2025 the first respondent serve a copy of these orders and the reasons for these orders on the applicant by sending them by ordinary post to the applicant’s address for service in the application and her last known residential address if different from her address for service.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant is a non-citizen whose application for the grant of a protection visa was refused by a delegate of the first respondent (Minister). A member of the second respondent (Tribunal) dismissed an application for review of the delegate’s decision under s 426A(1A)(b) of the Migration Act 1958 (Cth) because the applicant failed to attend a hearing before the Tribunal. On 2 November 2021 the Tribunal confirmed the dismissal of the applicant’s application for review as required by s 426A(1E) of the Migration Act. A registrar of the Federal Circuit and Family Court of Australia (Division 2) summarily dismissed an application for judicial review of the Tribunal’s decision on the ground that the proceeding had no reasonable prospects of success. The primary judge made an order dismissing an application for review of the registrar’s exercise of the delegated power: EEH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1156.

2    On 29 November 2023 the applicant filed an application for an extension of time and leave to appeal from the primary judge’s order together with an affidavit in support of the application for an extension of time. The affidavit exhibited a draft notice of appeal in accordance with r 36.01(1)(a) and Form 121 of the Federal Court Rules 2011 (Cth) for appeals from the Federal Circuit Court. On 4 December 2023 the Tribunal filed a submitting notice and the Minister a notice of an address for service. On 7 December 2023 a registrar of the Court made certain case management orders relating to the preparation and hearing of the application.

3    The pre-hearing orders required the Minister to file and serve a copy of the Federal Circuit Court’s reasons for decision, orders and application book. On 2 January 2024 the Minister complied with that order by filing the documents in the Court. On 9 January 2024 the Minister served the documents on the applicant by sending them to the email address identified in the application.

4    On 19 December 2024 the Court sent the parties a notice that the application was listed for hearing on 27 March 2025 at 10:15am (AEDT) at the Federal Court in the Law Courts Building in Sydney. The notice was sent to the email addresses identified in the application and notice of address for service.

5    The pre-hearing orders provided for the Minister to file and serve a written outline of submissions 20 days before the hearing date and for the applicant to file an outline of submissions ten days before the hearing date. On 11 March 2025 the Minister filed a written outline of submissions and sent a copy of the submissions to the applicant’s nominated email address. The applicant failed to file any written submissions.

6    The covering email by which the Minister’s submissions were served on the applicant included the following statement:

Unless the Court otherwise directs, you are required to attend Court on every occasion that your matter is listed for an appearance before the Court. If there is no appearance by you or by a legal representative on your behalf, then the first respondent may without further notice seek orders that your application be dismissed with costs.

7    When the application was called on for hearing there was no appearance by the applicant. After the matter was called outside the courtroom there was still no appearance by the applicant. The Minister then applied for orders dismissing the application under r 35.33 of the Rules with costs. I reserved my decision on that application and directed the Minister to file an affidavit dealing with the circumstances in which the matter was listed for hearing and the applicant was notified of the time and date of the listing. In compliance with that direction the Minister filed an affidavit of Maxwell Caleb Hopkins affirmed 2 April 2025. That affidavit deposed the facts set out in paragraphs [3]-[6] of these reasons.

8    Rule 35.33 provides:

35.33    Absence of a party

(1)    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant:

(i)    the application be dismissed; or (ii) the application be adjourned; or

(iii)    the hearing proceed only if specified steps are taken; or

…

9    The applicant is self-represented. In the application the applicant provided an email address. Therefore, in accordance with r 11.01(5) of the Rules, the applicant is taken to have agreed to receive documents at that email address. I am satisfied on the evidence before the Court that the applicant received notice of the hearing by an email sent to her nominated email address.

10    From the materials contained in the Federal Circuit Court application book, it is evident that the applicant’s first language is Mandarin and the extent to which she comprehends written and (or) spoken English is not clear. Nonetheless, the application, the applicant’s affidavit in support of an extension of time and the draft notice of appeal are all in comprehensible English. It is evident from these documents that the applicant understood that she required both an extension of time and leave to appeal and she identified and used the correct notice of appeal in her draft notice of appeal. I infer from these matters that the applicant either has sufficient command of written English or she was able to obtain assistance from a person or persons proficient in English and Mandarin such that she was able to understand the steps and prepare the documents necessary for her to make the application in this Court. I am satisfied that the applicant, upon receipt of the notice of the time, date and place of the hearing, was or ought to have been aware of these matters and, on the evidence before the Court, there is no explanation for the applicant’s failure to attend the hearing. In these circumstances and having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M and the parties’ duty to conduct proceedings consistently with that purpose under s 37N of the Federal Court of Australia Act 1976 (Cth), I consider it appropriate that an order be made dismissing the application with costs.

11    Nonetheless, there has not been any service of the documents relating to the hearing of the application at the applicant’s physical address. Having regard to applicant’s circumstances and the period of time that has elapsed since the application was filed and the registrar’s pre-hearing orders were made, it remains possible that there is a reasonable explanation for the applicant’s failure to attend. Where an application is dismissed under r 35.33(1)(a)(i), the applicant may subsequently apply to have the order set aside under r 39.05(a) of the Rules: e.g., Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 (White J). Therefore, if there be a proper and adequate explanation for her failure to attend the hearing, the applicant may apply to have the order dismissing the application set aside. Accordingly, I will make an order requiring the Minister to serve a copy of these reasons for decision and the sealed orders on the applicant at her physical address for service nominated in the application and her last known residential address.

Associate:

Dated:    10 April 2025