Lim v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3446

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – appropriate matter for the Court to exercise powers under r 13.03C(1)(c) of the Rules – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B, 476, 477

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Cases cited:

Crowley v Glissan (1905) 2 CLR 401

Applicant:

HOANG KAE LIM

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3602 of 2016

Judgment of:

Judge Street

Hearing date:

27 November 2019

Date of Last Submission:

27 November 2019

Delivered at:

Sydney

Delivered on:

27 November 2019

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms K Morris
Clayton Utz

ORDERS

The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The application is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

DATE OF ORDER: 27 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3602 of 2016

HOANG KAE LIM

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 December 2016 affirming an earlier decision by the Tribunal made under s 362B(1A)(b) of the Act on 23 November 2016 to dismiss the application for want of appearance.
The originating application in the present case made reference to more than the decision of 9 December 2016 and, on one view, it appears the applicant was intending to refer to the decision of 23 November 2016. The right to seek judicial review under s 476 of the Act in respect of a migration decision that correctly identifies the final decision, as in this case, would of necessity include the interdependent earlier step bein the migration decision dated 23 November 2016 under s 362B of the Act. There is no need for a separate application in respect of that interlocutory migration decision step upon which the final migration decision was based: Crowley v Glissan (1905) 2 CLR 401 at [403]. The same reasoning applies to a step of the kind here under s 326B by an administrative body. Accordingly, there would there be a need for an extension of time under s 477 of the Act in agitating any alleged error in respect of that interdependent earlier interlocutory migration decision where the application challenging the final migration decision was filed within the time period.
These proceedings were commenced on 19 December 2016. On 7 February 2019, orders were made fixing the matter for hearing today. The matter has been called and the applicant has failed to appear.
The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The first respondent has tendered three emails sent to the email address identified by the applicant on the notice of address for service dated 1 May 2017. The emails sent on 7 February 2019, 4 September 2019 and 20 November 2019 reminded the applicant of today’s hearing date. The last two communications foreshadow seeking that the application be dismissed with costs if the applicant failed to appear.
I am satisfied that on the evidence before the Court that the applicant was aware of the hearing date. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) of the Rules.

I certify that the preceding five (5) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 27 November 2019.

Associate:

Date: 29 November 2019

The applicant, Lim, sought judicial review of a decision made by the Administrative Appeals Tribunal. The Minister for Immigration was the respondent. The core of the dispute concerned the Tribunal's handling of an application where neither the applicant nor their representative appeared at the scheduled hearing.

The central legal issue before the Court was whether it was appropriate to exercise its powers under rule 13.03C(1)(c) of the Rules, which pertains to the dismissal of applications in circumstances where a party fails to appear. This rule allows the Court to dismiss an application if it is satisfied that the applicant has failed to appear before the Court or a tribunal, and has not provided a satisfactory explanation for their absence.

Justice Street reasoned that the applicant had failed to appear before the Tribunal and had not offered any satisfactory explanation for this absence. Consequently, the Court found that the conditions for exercising its power under rule 13.03C(1)(c) were met. The Court applied the principle that a party has a responsibility to attend scheduled hearings or provide a valid reason for their non-attendance.

The application was accordingly dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established