Baddam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 372
•7 April 2022
FEDERAL COURT OF AUSTRALIA
Baddam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 372
Appeal from: Reddy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1148 File number(s): ACD 40 of 2021 Judgment of: ROFE J Date of judgment: 7 April 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where appellant did not appear at hearing – application for dismissal for non-attendance – appeal dismissed Legislation: Federal Court Rules 2011 (Cth) Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: 31 March 2022 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: MinterEllison ORDERS
ACD 40 of 2021 BETWEEN: ANUDEEP REDDY BADDAM
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROFE J:
The appellant commenced this proceeding on 15 June 2021, appealing from a judgment of the Federal Circuit Court of Australia (as it then was) (FCC). The FCC dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which had affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a student visa.
On 23 June 2021, a Registrar of this Court made Directions as to the conduct and timetabling of the appeal (the Directions).
On 7 September 2021, my associate emailed the parties informing them that the matter was set down to be heard at 10:15am on 31 March 2022. The email asked the parties to confirm whether that date was suitable. My associate received no response from the appellant.
On 9 September 2021, the Minister’s legal representatives emailed the appellant in compliance with the Directions. The email informed the appellant of the hearing date, and flagged the Minister’s intention to apply for dismissal should the appellant fail to appear.
The appellant did not file written submissions before the deadline set by the Directions, nor at any time after.
On 29 March 2022, my associate emailed the parties regarding the conduct of hearing. Again, there was no response from the appellant.
On 30 March 2022, my associate telephoned the appellant three times throughout the day, leaving voicemails on each occasion. On the same day, my associate emailed the parties with Microsoft Teams hearing details and distributed an online calendar invite. The appellant was unresponsive to each communication.
On 30 March 2022, the Minister filed an affidavit of Ms Emily Kate Hill. Ms Hill is a solicitor employed by the Minister’s legal representatives. Ms Hill gave evidence that, on 30 March 2022, her law firm received correspondence from the Minister’s department indicating that the appellant was offshore and not currently in possession of any visa that would permit re-entry into Australia. The material annexed to Ms Hill’s affidavit apparently shows that the appellant’s visa ceased on 14 September 2021. The Minister submitted that the material gives rise to the assumption that the appellant left Australia on that date.
On 31 March 2022, the matter was called for hearing at the listed time. There was no appearance by the appellant or on his behalf, either in person or by the Microsoft Teams link. The matter was called outside the courtroom by the court officer. My associate had also telephoned the appellant earlier that morning and received no response.
The Minister made an application for dismissal under r 36.75 of the Federal Court Rules 2011 (Cth) (Rules). Rule 36.75 relevantly provides:
(1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a)if the absent party is the appellant:
(i) the appeal be dismissed; …
I adjourned the matter for seven days and noted that if I did not hear anything from the appellant within that time I intended to make an order dismissing the appeal.
Later on the same day, my associate emailed the appellant to advise him that if he did not respond within seven days I would determine the Minister’s application for dismissal. No response was received.
In the circumstances, I propose to make the order sought by the Minister. The appellant was informed of the hearing date by my associate and by the respondent. The appellant was also given the opportunity to appear via Microsoft Teams, which he could have done notwithstanding the fact that he is not currently in Australia.
I will make an order dismissing the appeal under r 36.75 of the Rules. I will make no order as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate:
Dated: 7 April 2022
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