Federal Court Allows Visa Appeal Against Refusal Decision

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v [APPELLANT] [2010] FCA 1295

Citation: Minister for Immigration and Citizenship v [APPELLANT] [2010] FCA 1295

Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v [NAME] [APPELLANT] TRIBUNAL

File number: ACD 29 of 2010

Judge: BENNETT J

Date of judgment: 19 November 2010

Date of hearing: 19 November 2010

Place: [APPELLANT]: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 12

Counsel for the Appellant: [redacted]

Solicitor for the Appellant: [redacted]

Counsel for the Respondents: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA

[APPELLANT] 29 of 2010

BETWEEN: [APPELLANT] FOR IMMIGRATION AND CITIZENSHIP

Appellant

[APPELLANT] TRIBUNAL

[APPELLANT] OF ORDER: 19 NOVEMBER 2010

[APPELLANT]

THE COURT DIRECTS:

1. The [APPELLANT] to file and serve any written submissions by noon on 1 December 2010.

2. The applicant to file and serve any written submissions in reply by 4 p.m. on 6 December 2010.

3. The [APPELLANT] to file and serve any application for a further oral hearing by noon on 1 December 2010.

4. That any further oral hearing will take place on 10 December 2010 at a time to be fixed by the Court.

5. The applicant to serve the [APPELLANT] with a copy of these directions.

6. The applicant to attempt to make telephone contact with the [APPELLANT]: [[APPELLANT]] and will be sent to him; and (b) before 1 December 2010, to find out whether he received the directions and to ask him what his intentions are; and to inform the Court of the outcome of this. THE COURT NOTES:

7. The [APPELLANT] is not obliged to make any application for any further oral hearing if he wishes either: (a) not to file and serve written submissions; or (b) only to file and serve written submissions. 8. [ADDRESS] will send a copy of these directions to the [APPELLANT]'s home address.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

[APPELLANT] 29 of 2010

BETWEEN: [APPELLANT] FOR IMMIGRATION AND CITIZENSHIP

Appellant

[APPELLANT] TRIBUNAL

[APPELLANT]

JUDGE: BENNETT J

DATE: 19 NOVEMBER 2010

PLACE: [APPELLANT] FOR

JUDGMENT 1 These proceedings involve an appeal by the Minister for Immigration and Citizenship (the Minister) from a decision by the Administrative Appeals Tribunal (the Tribunal) to set aside the decision to refuse Mr [APPELLANT]'s application for a Temporary Business Entry Class UC Visa pursuant to s 501(2) of the Migration Act 1958 (Cth). 2 When this matter was called this morning there was no appearance for Mr [APPELLANT]. The matter was called outside the court and there was still no appearance. Attempts were [RESPONDENT] by the Court to contact Mr [APPELLANT] on the mobile phone number that he had provided with the notice of appearance that he had filed. On each occasion the phone was not answered. A message was left on the message bank service for that phone. 3 Mr [APPELLANT] was served with the original application on 18 August 2010. An affidavit of service in support has been filed. Mr [APPELLANT]'s notice of appearance was filed on 25 August 2010. In the notice of appearance the word solicitor has been struck out and substituted with "self-litigant". The notice of appearance is signed, apparently, by Mr [APPELLANT]. 4 This morning, at the suggestion of the Court, the Minister's solicitor rang the telephone number for Mr [APPELLANT]'s home address. Mr [APPELLANT] answered the phone. There was a conversation between him and, I assume, a solicitor from [APPELLANT]. Mr [APPELLANT] said to that solicitor, at first, that he did not wish to come to Court without a lawyer. He then spoke with Ms [COUNSEL], the solicitor handling this matter for the Minister, and affirmed that he needed to speak to his lawyer. [NAME] asked Mr [APPELLANT], 'have you instructed a lawyer?'. He said, 'no' but said that he would immediately call the barrister who appeared for him before the Tribunal. 5 [NAME] said in evidence that at first Mr [APPELLANT] indicated that he would come to the Court immediately. He also informed Ms [NAME] that he had only heard about the hearing five minutes earlier. [NAME] informed Mr [APPELLANT] that I had requested that if he were spoken to and does come to Court he should bring with him all the information that he had received, Mr [APPELLANT] confirmed that he had received, by express post, the Minister's written submissions and list of authorities which were filed on 15 November 2010 and, I assume, sent to him by express post on or about that date. When asked whether he had received the court book that had been sent to him on a previous occasion by express post, Mr [APPELLANT] said that he had not received it. 6 I have a copy of the letters that were sent to Mr [APPELLANT]'s home address by express post: · on 12 October 2010 enclosing a copy of the directions [RESPONDENT] by Jagot J at a directions hearing; · on 28 October 2010 purportedly enclosing a copy of the court book and also stating: 'If you have any queries, please contact our office'. A series of telephone numbers were given; and · on 15 November 2010 enclosing the Minister's submissions and list of authorities. 7 The notice of listing was also sent to Mr [APPELLANT]'s home address. It is dated 26 October and sets out the date and time for hearing. 8 Prior to being informed that Mr [APPELLANT] would not attend and while it was thought that he was on his way to the Court, I permitted counsel for the Minister to open, to go through the issues in the proceedings and the relevant legislation, with the intention that that could be summarised and repeated for Mr [APPELLANT] when he attended, having understood that it would take less than half an hour for him to arrive to the Court from his residence. 9 Subsequent conversations with Mr [APPELLANT] [RESPONDENT] it clear that he does not intend to come to Court without a lawyer. He is, of course, entitled to have legal representation in this matter and I take into account the fact that it is a matter of great importance to him. However, I do have some difficulty with the proposition that he only heard about this hearing when he was first contacted by telephone today. Even if he had not received the notice of listing and the court book, he did receive the submissions. Mr [APPELLANT] has engaged in previous legal proceedings, not least before the Tribunal and, as I understand it, there was an earlier set of proceedings that he was involved in that resulted in the matter being referred back to the Tribunal. He would not be a stranger to what happens during the course of litigation and, in particular, the concept of submissions being filed prior to a hearing. 10 In the circumstances, I do not place any weight upon Mr [APPELLANT]'s assertion that he only heard about this application today. Even if he had not understood that there was an imminent hearing, he should have understood that there was a hearing in the immediate future and taken steps to inform himself of the date of that hearing. In the circumstances, as this matter has been set down for half a day and some time has already been spent on dealing with the fact that Mr [APPELLANT] has not attended, I propose to continue to hear counsel for the Minister. Of course, Mr [APPELLANT] will be able to obtain a copy of the transcript of what took place today if he or his legal representatives wish to do so. 11 I will make directions that Mr [APPELLANT], who has received the submissions, be given some opportunity to file submissions in writing. The Minister will have the opportunity to make any further submissions in reply in writing. 12 If Mr [APPELLANT] wishes to make an application for a further oral hearing and the opportunity to make oral submissions I will consider that. However the time will not be open-ended. I would hear any further oral submissions on 10 December 2010. I will, of course, take into account the availability of counsel for the Minister as this is a part-heard matter.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 24 November 2010