Aau17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 835

FEDERAL COURT OF AUSTRALIA

AAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 835  

Appeal from:	AAU17 v Minister for Immigration & Anor [2019] FCCA 3618
File number:	NSD 2130 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	22 July 2021
Legislation:	Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 36.74, 36.75
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	8
Date of hearing:	22 July 2021
Counsel for the Appellant:	Appellant did not appear
Counsel for the Respondents:	Mr J Pipolo
Solicitor for the Respondents:	Mills Oakley

ORDERS

NSD 2130 of 2019

BETWEEN:

AAU17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	ABRAHAM J
DATE OF ORDER:	22 JULY 2021

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The appellant is to pay the first respondent’s costs, to be agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(delivered ex tempore)

ABRAHAM J:

1. The appellant appeals to this Court from an order made by the Federal Circuit Court on 11 December 2019 dismissing his application for judicial review of a decision of the Immigration Assessment Authority made on 14 December 2016 affirming the decision of a delegate of the first respondent, not to grant him a Safe Haven Enterprise visa. The notice of appeal was filed on 23 December 2019, with orders for the conduct of the proceedings made on 27 February 2020. The appellant was unrepresented at the time he filed his documentation.

2. On 23 April 2021, by way of email, the solicitors for the first respondent advised the Registry of this Court that the appellant has departed Australia with no right of return. Attached to that email was an affidavit exhibiting Departmental records confirming this. The email also advised that a sealed copy of the affidavit had been served on the appellant at his nominated email address. The respondent read the affidavit in support of its application. I accept that evidence.

3. On 23 June 2021, this Court sent an email to the parties notifying them that this hearing was proposed to be listed for 22 July 2021 at 9.00am. No response was received from the appellant.

4. On 21 July 2021, the Court attempted to contact the appellant on three occasions by telephoning him on the telephone number provided in his originating application filed in this Court.  On all three occasions the call could not be connected.

5. The matter was called on for the case management hearing at 9.00am on 22 July 2021, including by video link by the use of Microsoft Teams, with an invitation to attend having been sent to the email address the nominated by the appellant provided when filing his application. The appellant did not respond to the invitation and there was no appearance by him at this hearing.

6. The appellant has departed Australia. I am satisfied the appellant has had proper notice of this hearing date, having been notified of the date on the contact details provided by him.

7. In those circumstances, the respondent applied for the proceedings to be dismissed, pursuant to r 36.75 and/or in the alternative, r 36.74 of the Federal Court Rules 2011 (Cth) on the basis that the appellant has failed to attend a hearing in the proceeding at the time it was listed to occur. I noted that the failure to attend a hearing in those circumstances is a basis on which a default judgment can be entered pursuant to r 5.22 and 5.23. The respondent also made its application on that basis. I am satisfied in the circumstances, including that the appellant has departed Australia with no right of return, that it is appropriate for the proceedings to be dismissed.

8. The proceedings are dismissed, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

Associate:

Dated:       22 July 2021