AVU16 v Minister for Immigration and Border Protection

[2018] FCA 815

FEDERAL COURT OF AUSTRALIA

AVU16 v Minister for Immigration and Border Protection [2018] FCA 815

Appeal from:	AVU16 v Minister For Immigration & Anor [2017] FCCA 2695
File number:	NSD 1997 of 2017
Judge:	MARKOVIC J
Date of judgment:	30 May 2018
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing:	30 May 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First Respondent:	Mr T Galvin of Minter Ellison
Counsel for the Second Appellant:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1997 of 2017

BETWEEN:

AVU16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	30 MAY 2018

THE COURT ORDERS THAT:

1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) the appeal be dismissed.

2.The appellant 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. On 16 November 2017 the appellant filed a notice of appeal from the Federal Circuit Court of Australia (Federal Circuit Court) in this Court.  By the notice of appeal, the appellant appealed from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister).  The appeal was listed for hearing today, 30 May 2018 at 10.15 am. 

2. On 1 May 2018 the solicitors for the Minister sent a letter by email to the appellant providing by way of service the Minister's notice of address for service and a submitting notice filed on behalf of the Tribunal.  Those documents were sent on that date, in close proximity to the hearing date, because those solicitors had only recently been instructed to act on behalf of the Minister and the Tribunal.  In their letter the Minister's solicitors stated:

   We note that this matter is listed for hearing before the Court at the Law Courts Building, Queens Square, Sydney, on 30 May 2018 at 10.15 am.  Please check which Court Room it is being heard upon arrival.

   Please be aware that if you do not appear on that occasion, the Minister may apply to have the matter dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011.

   (original emphasis)

3. On 28 May 2018 the Minister's solicitors sent a further letter by email to the appellant enclosing the Minister's outline of submissions and list of authorities.  Once again, in that letter the Minister's solicitors stated:

   We note that this matter is listed for final hearing before the Court at the Level 17 Law Courts Building, Queens Square, Sydney, on 30 May 2018 at 10.15 am. Please check your assigned court room upon arrival.

   Please be aware if you do not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions of the Federal Court Rules 2011 (Cth).

4. In both instances the letters sent by email were addressed to the appellant at his address for service included in the notice of appeal filed with this Court.

5. This morning when the matter was called on for hearing, after being called three times outside the courtroom, there was no appearance by or on behalf of the appellant. 

6. The Minister has applied to have the appeal dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). That rule provides that if the appellant is absent when an appeal is called on for hearing the respondent may apply to the Court for an order that the appeal be dismissed.

7. I am satisfied that the appellant was aware that his appeal was listed for hearing today.  It is the case that when the matter was called on for hearing this morning the appellant did not appear.  Accordingly, I will make the order sought by the Minister and will dismiss the appeal.

8. The Minister seeks his costs of the appeal.   I will also make an order that the appellant pay the Minister's costs as agreed or taxed. 

   CONCLUSION

9. I will make orders accordingly. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:        6 June 2018