DCH18 v Minister for Home Affairs [2019] FCA 749

FEDERAL COURT OF AUSTRALIA

DCH18 v Minister for Home Affairs [2019] FCA 749 Appeal from: DCI18 as Litigation Guardian for DCH18 v Minister for Home Affairs & Anor [2018] FCCA 3233

File number: NSD 2187 of 2018

Judge: PERRY J

Date of judgment: 22 May 2019

Date of publication of reasons: 23 May 2019

Legislation: Federal Court Rules 2011 (Cth) r 36.75

Date of hearing: 22 May 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 21

Counsel for the Appellant: The appellant did not appear

Counsel for the First Respondent: Ms S McGee

Solicitor for the First Respondent: Australian Government Solicitor

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

ORDERS NSD 2187 of 2018

BETWEEN: DCI18 AS LITIGATION GUARDIAN OF DCH18 Appellant

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: PERRY J DATE OF ORDER: 22 may 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's litigation guardian is to pay the costs of the first respondent 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 The appellant is a Chinese national aged 5 years old. These proceedings are instituted on his behalf by his mother as his litigation guardian. 2 The appellant was born in Australia to unmarried Chinese nationals who had entered Australia some years earlier on student visas. The appellant's parents and his sibling, who is also a Chinese national born in Australia, were previously refused protection visa applications. 3 On 18 December 2015, a delegate of the first respondent, the Minister for Home Affairs (the Minister), made a decision refusing to grant the appellant a protection visa. The delegate's decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 23 May 2018. 4 By a notice of appeal filed on 26 November 2018, the appellant appeals from a decision of the Federal Circuit Court (FCC) dismissing his application for judicial review of the Tribunal's decision. His mother appeared on his behalf without legal representation before the primary judge. 5 The notice of appeal is in the following terms: 1. The Federal Circuit Court erred in law when it decide my son's application before it Particulars i) I do not think His Honour has carefully considered my son's claims and evidence submitted to the Federal Circuit Court in support of my son's application. 2. The Federal Circuit Court erred in law as there is apprehended bias on the decision of the Administrative Appeals Tribunal (the Tribunal) in relation to my son's [a]pplication for a Protection visa. Particulars i) His Honour failed to consider that the Tribunal ignored or failed to consider important documentary evidence that I had submitted; and ii) His Honour failed to consider that the Tribunal had misunderstood my son's claim and made a significant mistake in relation to an important finding of fact. 6 No address for service has been filed by any legal representative for the appellant and as such, it appears that the appellant's mother has not engaged legal representation. The appellant's mother did not file any written submissions in advance of the appeal in accordance with the orders of the Registrar made on 19 December 2018. The Minister filed written submissions on 30 April 2019. 7 The matter was initially called on for hearing on 7 May 2019. At 10.15am, there was no appearance for the appellant's mother. In the circumstances, the Court waited for approximately half an hour in order to afford the appellant's mother time to attend if she were running late or having difficulties in finding the courtroom. The court officer made enquiries of the Registry to check whether the appellant's mother had attended the Registry that morning, and Registry confirmed that she had not. Further, an attempt was made to contact the appellant's mother on the mobile telephone number which she had provided in the notice of appeal but the call rang out to voicemail. A message was left, with the assistance of the interpreter, to the effect that the call was from the Federal Court and asking for a return phone call. 8 When the appeal was called on for hearing at 10.41am on 7 May 2019, there was no appearance by the appellant's mother. The matter was called outside the courtroom three times and there was still no appearance. In the circumstances, the appeal was re-listed for hearing at 10.15am on 22 May 2019. In making those orders, I had particular regard to the fact that there was no prior history of non-attendance evident on the record by the appellant's mother and that the appeal concerned a minor. The orders made relisting the appeal included the following notations: 2. There was no appearance by or on behalf of the appellant on 7 May 2019 when his appeal was called on for hearing. 3. If the appellant fails to appear at the hearing of his appeal on 22 May 2019, the Minister has indicated that he may seek to have the appeal dismissed with costs without any further notice to the appellant. 9 Subsequently, when the appeal was called on for hearing again on 22 May 2019 at approximately 10.35am, there was still no attendance by the appellant's mother. However, with the assistance of the interpreter, a telephone call was made to the appellant's mother's mobile phone which she answered. The appellant's mother denied receiving any voice message on her mobile phone from the previous hearing or receiving any subsequent correspondence about the hearing today. However, at the Court's suggestion, she agreed to attend at 3.30pm on 22 May 2019 in order to enable the appeal to be dealt with today. In the course of that telephone call, the appellant was advised of the courtroom number and level on which the courtroom for the hearing was located and it was explained to her that if she did not attend, the Minister intended to apply for the appeal to be dismissed. 10 The matter was called on again at 3.35pm on 22 May 2019 and called outside the courtroom three times by the court officer. However, there was again no appearance by the appellant's mother. I note that enquiries were also made at about 3.30pm as to whether the appellant's mother was in the Registry, with Registry advising that she was not. 11 In the circumstances, the Minister applied for the appeal to be dismissed under r 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. 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 mother's failure to attend when the appeal was called on today. In reaching this view, I have had regard to those aspects of the history of this matter which I have set out above and the following additional matters. 13 First, orders were made by Registrar McCormick on 19 December 2018 setting a timetable for the preparation of the appeal for hearing, including for the appellant by his litigation guardian to file written submissions 10 business days prior to the hearing date. A perusal of the Court File indicates that a copy of those orders was provided to the parties by email on 18 December 2018, including in particular to the appellant's mother at the email address provided by her for service, together with a guide for preparing submissions for a hearing in the Federal Court. The email was from the National Operations Team and gave a telephone number at which the Court could be contacted in the event that the appellant's mother had any queries. As I have noted above, no written submissions were filed by the appellant in accordance with the orders made on 19 December 2018 or otherwise. 14 Secondly, on 30 April 2019, the Australian Government Solicitor sent a letter to the appellant's residential address as well as to the email address provided by the appellant's mother on the notice of appeal, enclosing a sealed copy of the first respondent's submissions and reminding the appellant of the hearing on 7 May 2019 at 10:15am. That letter states: "Please note, should you fail to appear at the hearing of your appeal, orders may be sought that it be dismissed with costs and without further notice to you." 15 Thirdly, I have already referred to the circumstances in which there was no appearance by the appellant's mother or anyone else on his behalf on the first occasion on which the appeal was listed (7 May 2019). Later that day, at 11.36am, an email was sent by the Federal Court Registry to the parties attaching the orders made at the hearing on 7 May 2019. That email relevantly stated: "The Court would be grateful if the Minister's solicitors could please take steps to draw the new hearing date, being 10.15am on 22 May 2019, and these orders to the attention of the appellant." I note that that email itself had been sent to the appellant's mother's email address in any event. 16 Fourthly and also on 7 May 2019, the Australian Government Solicitor sent an email to the appellant's mother's email address enclosing a letter in the following terms: 1. I refer to the above matter which came before her Honour Justice Perry of the Federal Court of Australia on Tuesday, 7 May 2019. 2. The Court noted that you did not appear and decided to re-list this matter for hearing at 10.15am on Wednesday, 22 May 2019. 3. I now enclose a sealed copy of the orders made today. 4. Please note, should you fail to appear at the hearing of your appeal, orders may be sought that it be dismissed with costs and without further notice to you. 5. Should you wish to discuss any aspect of this matter, please contact me. 17 I note that the contact details for the senior lawyer having conduct of the appeal for the Minister were provided in the letter. A copy of that letter was also sent by pre-paid post to the appellant's mother's address for service as provided in the notice of appeal. 18 In all of these circumstances, I consider that the appellant's mother has been given every opportunity to attend the hearing and to make submissions on the appellant's behalf and, for reasons which are unexplained, has failed to appear. The duty of the Court is to ensure that the appellant is given an opportunity to appear and make submissions, and that duty is complied with even if the appellant does not take advantage of the opportunity. 19 I have also taken into account that the grounds of appeal are expressed at a high level of generality and fail to identify any specific errors in the decision of the FCC or for that matter in the Tribunal's decision to affirm the delegate's decision. 20 Finally, I have had regard to the entitlement of the appellant to apply to the Federal Court 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 mother's failure to attend the hearing today and the strength of the appellant's case on the appeal if the order dismissing the appeal were to be set aside. 21 For these reasons, the appeal should be dismissed under r 36.75(1)(a)(i) with the appellant's mother to pay the first respondent's costs as agreed or assessed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.