Application for Extension Dismissed Due to Non-Appearance

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [RESPONDENT] [2018] FCA 1325 File number: NSD 457 of 2018

Judge: MARKOVIC J

Date of judgment: 2 August 2018

Legislation: Federal Court Rules 2011 (Cth) r 33.33(1)

Date of hearing: 2 August 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 12

Counsel for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

BETWEEN: [APPELLANT] Applicant

[RESPONDENT] Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 2 AUgust 2018

THE COURT ORDERS THAT:

1. Pursuant to r 33.33(1) of the Federal Court Rules 2011 (Cth), the applicant's application for an extension of time filed on 28 March 2018 be dismissed. 2. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J: 1 This is an application for an extension of time to appeal from a decision made by the Administrative Appeals Tribunal (Tribunal) not to revoke the cancellation of the applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth). 2 The applicant's application was first listed before the Court on 19 April 2018 at which time the Court made a number of orders including an order listing the matter for hearing on 24 July 2018 at 2.15 pm Sydney time, being 12.15 pm Western Australian time. The applicant is presently in detention at [ADDRESS] in Western Australia. 3 By email dated 13 June 2018 the applicant and the first respondent, the [NAME] [RESPONDENT] (Minister), were informed by the Court that it could no longer hear the matter on 24 July 2018 as previously ordered and were requested to jointly indicate to the Court which day in the week of Monday, 30 July 2018 was convenient to the parties to relist the matter for hearing at 2.15 pm. 4 There was evidence before the Court of subsequent attempts made by the solicitor for the Minister to agree to a suitable hearing date with the applicant. 5 On 26 June 2018 Ms [COUNSEL], a solicitor in the employ of the solicitors for the Minister, sent an email to the Court, copied to the applicant, informing the Court relevantly that: I refer to your email below. We have emailed the applicant (who I note is copied on this email) on three occasions seeking an indication as to which of the proposed dates would be suitable for the rescheduled hearing, but are yet to receive a response. Given that the hearing date is approaching, we wish to inform the Court that [NAME] is available on either 1 August or 2 August at 2.15 pm for the rescheduled hearing. We apologise that we are unable to indicate a joint preference as requested. Please let us know if there is anything further we can do to assist. (original emphasis) 6 On 27 June 2018 the New South Wales District Registry responded to that email, copying the applicant and the solicitor for the Minister and noting that the matter had been listed for hearing on 2 August 2018 at 2.15 pm. 7 On 17 July 2018 Ms [APPELLANT] sent an email to the applicant attaching, by way of service, the Minister's outline of submissions and list of authorities which had been filed that day. Ms [NAME] included the following in her email: We note that this matter is listed for hearing on 2 August 2018 at 2.15 pm (AEST), being 12.15 pm (WA time) before Justice Markovic in the Federal Court, Law Courts Building, Sydney. We will arrange for you to attend the hearing via videolink in accordance with Order 8 of the Court orders made on 19 April 2018. 8 Today when the matter was called on for hearing at 2.15 pm, while there was a video link connection to the detention facility at [ADDRESS] in Western Australia, the applicant was not present.

Accordingly, I adjourned the Court for a short period to allow those representing the Minister to make further inquiries as to the applicant's whereabouts by speaking to the staff at [ADDRESS]. 9 Upon the hearing being reconvened, the applicant was still not present. However, Mr [APPELLANT], an officer at the [COMPANY], was present. Upon inquiry, Mr [APPELLANT] informed the Court that the applicant was in his room and would not come down to the interview building where the video link facility is located. Mr [NAME] also informed the Court that at 11.55 am (Western Australia time), he rang the compound, requesting that the applicant be brought down. He further informed the Court that he rang again just after midday at which time he was informed by the person who went to get the applicant that the applicant had refused to come down. 10 Mr [APPELLANT] informed the Court that since that time, that is, just after 12.00 pm (Western Australia time), the applicant had not come down from his room and as at approximately 2.30 pm (AEST) (that is, 12.30 pm Western Australia time), the applicant was not present in the room at [ADDRESS] where the video facility conference was available and connected to the Court. 11 In those circumstances, the applicant was absent when the matter was called on for hearing and has not appeared since that time. The Minister accordingly sought an order pursuant to r 33.33(1) of the Federal Court Rules 2011 (Cth) for the applicant's application to be dismissed. Given that the applicant was not present when his application was called on for hearing and is still not present, I propose to and will make an order to that effect. 12 The Minister has also sought his costs of the application as agreed or assessed. Given the Minister has taken steps to respond to the application and is present today, represented by a solicitor and counsel, I will also make that order. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate: Dated: 2 August 2018