BJS15 v Minister for Home Affairs [2019] FCA 318

FEDERAL COURT OF AUSTRALIA

BJS15 v Minister for Home Affairs [2019] FCA 318 Appeal from: BJS15 v Minister for Immigration & Anor [2018] FCCA 2254

File number(s): NSD 1270 of 2018

Judge(s): PERRY J

Date of judgment: 6 March 2019

Date of publication of reasons: 7 March 2019

Legislation: Federal Court Rules 2011 (Cth)

Date of hearing: 6 March 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 15

Counsel for the First Appellant: The Appellant did not appear

Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS NSD 1270 of 2018

BETWEEN: BJS15 Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: PERRY J DATE OF ORDER: 6 march 2019

THE COURT ORDERS THAT:

1. The appeal is summarily dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). 2. The appellant is to 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

(Revised from Transcript)

PERRY J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) given on 26 June 2018 dismissing the appellant's application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). By a decision made on 18 June 2015, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), not to grant the appellant a Protection (Class XA) visa (the protection visa). 2 The appellant is a citizen of China. No address for service has been filed by any legal representative for the appellant and as such, it appears that he has not engaged legal representation. I note that the appellant also appeared without legal representation before the primary judge. The appellant had requested the assistance of an interpreter in the Mandarin and English languages for the hearing of his appeal and the interpreter was present today. 3 The Minister filed written submissions on 29 January 2019 in accordance with orders made by the Registrar on 4 September 2018 (the Registrar's orders). The Registrar's orders also required the appellant to file written submissions no later than 10 business days before the hearing date but no submissions have been filed by the appellant. The Registrar's orders also required that the lawyers for the Minister notify the other parties in writing of the date set down for the hearing of the appeal and of those directions. 4 The notice of appeal contains the following grounds of appeal: 1. Bias of the Honour, Judge of Federal Circulate Court against the Applicant. 2. Error of the Honour, Judge of Federal Circulate Court, in failing to hear the evidence given by the applicant. 3. Error of the Honour, Judge of the Federal Circulate Court, in failing to identify the jurisdictional error made by the Second Respondent. (errors in the original) 5 The appellant did not appear when the appeal was first listed for hearing on 6 February 2018 at 2.15pm. However, he was contacted at the hearing on his mobile phone where he stated that he had not attended the Court because he did not receive the letter advising of the court date and he sought an adjournment so that he could appear. That application was opposed. The appellant also stated that the post office box address which he had given in relation to the appeal (which was the same post office address that he had provided in the FCC proceedings) was not his personal post office box but belonged to a friend. As a result, at the hearing he gave a Post Office box address which he confirmed did belong to him. The appellant also confirmed his personal email address to which the Registry had sent a letter advising the appellant of the first hearing date, but said that he had changed his phone and rarely opened his emails. While I did not accept that these were reasonable explanations for not attending the hearing on 6 February 2019, I nonetheless granted a short adjournment to 6 March 2019 at 2.15pm because of the seriousness of the consequences to the appellant if his appeal was dismissed. 6 In the circumstances, I made orders orally in Court on 6 February 2019 while the appellant was still on the telephone call (noting that the interpreter assisted throughout that call) as follows: 1. The orders made by the Registrar on 4 September 2018 be varied so that Order 5 reads: "The Appellant file and serve a written outline of submissions on or before 4pm on Friday, 1 March 2019". 2. The first respondent is to serve the appeal book together with a copy of the orders made by the Registrar on 4 September 2018, these orders and the first respondent's outline of submissions on the Appellant by post and e-mail on or before 4pm on 6 February 2019. 3. The postal address to which the documents referred to [in Order 2] are to be sent is the address given by the Appellant at the hearing on 6 February 2018, namely, [redacted] NSW 2144. 4. The Appellant's application for an adjournment of the hearing on 6 February 2019 is granted. The hearing of the appeal is re-listed to Wednesday, 6 March 2019 at 2:15pm. 5. The Minister is to have his costs of and incidental to the adjournment of the hearing of the appeal on 6 February 2019. 7 The orders also noted that: 1. At the hearing on 6 February 2019, the Appellant confirmed that the e-mail address provided by him in his Notice of Appeal is his personal e-mail address. 2. The Court emphasises the importance of the Appellant checking his email and post-office box for the documents referred to in Order 2 above. 3. The Minister has indicated that he will seek to have the appeal dismissed without a hearing if the Appellant does not appear on 6 March 2019. 8 The matter was called on again today at 2.30pm, the start of the proceeding being slightly delayed in case the appellant was simply running late for the hearing. The matter was called outside the courtroom three times by the Court officer but there was still no appearance for the appellant. The Court officer also confirmed that she had telephoned the Registry shortly before the commencement of the hearing and that the Registry had confirmed that there were no members of the public present at the Registry. 9 Furthermore, prior to the matter being called on, the Court, with the assistance of the Court officer, attempted to call the appellant on the mobile number which he had answered at the hearing on 6 February 2019. However, the telephone call rang out and the interpreter left a message for the appellant inquiring as to whether he is aware of the hearing today at 2.15pm, giving the address of the Court on Phillip Street, and asking the appellant to call the Court back. 10 In the circumstances, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (Rules) for non-appearance and made brief oral submissions in support of that application. 11 Rule 36.75(1)(a)(i) provides: (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the appellant: (i) the appeal be dismissed; or (ii) the hearing be adjourned; or (iii) the hearing proceed only if specified steps are taken; … 12 I agree that the appeal should be dismissed under r 36.75(1)(a)(i) by reason of the appellant's failure to attend when the appeal was called on today. In reaching this view, I have had regard to the procedural history of the matter which I have summarised above, including the fact that the appeal has already been adjourned on a prior occasion and that the appellant was clearly on notice that if he did not attend, the appeal may be dismissed without a hearing. 13 I also note that in compliance with orders 2 and 3 of the orders made on 6 February 2019, the appellant was served by the Minister with the documents referred to in those orders by post and by email to the addresses provided by the appellant at the hearing and embodied in those orders. A legal assistance form was also included which was in Mandarin. 14 Finally, I have had regard to the entitlement of the appellant to apply under r 36.75(2) to set aside the orders made today. Whether or not any such application succeeded would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the appellant's failure to attend the hearing today and the strength of his case on the appeal if the order dismissing the appeal were to be set aside. 15 For these reasons, the appeal should be dismissed under r 36.75(1)(a)(i) with costs as agreed or assessed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.