BCG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 910
•4 August 2021
FEDERAL COURT OF AUSTRALIA
BCG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 910
Appeal from: BCG16 v Minister for Immigration & Anor [2019] FCCA 2019 File number: WAD 409 of 2019 Judgment of: ABRAHAM J Date of judgment: 4 August 2021 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Date of hearing 4 August 2021 Number of paragraphs: 17 Counsel for the Appellant: Appellant did not appear Counsel for the Respondents: Mr J Papalia Solicitor for the Respondents: Australian Government Solicitor ORDERS
WAD 409 of 2019 BETWEEN: BCG16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.The appellant’s interlocutory application 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
ABRAHAM J:
The appellant is a national of Sri Lanka who arrived in Australia on 30 July 2012 as an unauthorised maritime arrival. On 20 December 2012 the appellant applied for a protection visa under the Migration Act 1958 (Cth), which the delegate refused on 16 April 2014. The Administrative Appeals Tribunal (the Tribunal) affirmed the delegate’s decision, and the Federal Circuit Court dismissed an application for judicial review of the Tribunal’s decision. This application relates to reinstating his appeal against this decision.
The chronology of the proceedings is as follows.
The appellant filed a notice of appeal in this Court dated 14 August 2019. The application was listed for hearing of the appeal on 25 February 2020.
The appellant was notified by the Court of the date of that hearing. Further, on 30 January 2020 the respondent also sent a letter to the appellant by express post confirming the matter was listed for hearing at 2:15 pm on 20 February 2020, and enclosed a sealed copy of the appeal book. The letter reminded the appellant that he was required to file and serve a written outline of submissions in support of the appeal by 6 February 2020.
When the matter was called on for hearing at the time allocated, the appellant failed to appear.
The respondent informed the Court that prior to the matter being called on for hearing the Court Officer had made two attempts to contact the appellant by telephone, using the mobile number provided by him in the notice of appeal, however the calls proceeded to voicemail.
In those circumstances, I determined that the appropriate course was to dismiss the appeal pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) and made orders to that effect.
On 30 March 2020 the appellant filed an interlocutory application seeking an order to “reinstate the case for a fresh hearing”. An affidavit was also filed which deposed that although the applicant originally had legal representation the lawyer returned the papers before the hearing date, informing him that he was not prepared to act for him. The applicant said it was his fault he did not attend, there was confusion in the documents returned to him which included the date of the hearing.
There has been no new originating application filed, and therefore the single ground referred to in his appeal notice is the only one advanced. The appellant was represented in the Court below, although he filed the appeal notice without the assistance of legal representation. He alleged:
[t]he primary judge didn’t adequately examine the evident [evidence] that was placed there by didn’t exercise the Courts proper jurisdiction.
The matter was listed for case management hearing on 4 August 2021 via videolink.
On 25 June 2021, this Court sent an email to the parties notifying them that this hearing was proposed to be listed for 4 August 2021. No response was received from the appellant.
On 12 July 2021, the Court attempted to contact the appellant on two occasions by telephoning him on the telephone number provided in his interlocutory application filed in this Court. The appellant did not answer and a voicemail was left informing him to contact the Western Australian Federal Court Registry.
Later on 12 July 2021, this Court posted a letter to the applicant to the address provided in his interlocutory application confirming the matter was listed for hearing on Wednesday 4 August 2021 at 9.00am (AWST) via videolink. The applicant has not contacted the Court prior to the hearing.
The matter was called on for the case management hearing on 4 August 2021 at 11.00 am AEST (9.00 am AWST) by videolink by the use of Microsoft Teams. The appellant did not respond to the invitation and there was no appearance by him at this hearing.
In those circumstances, the respondent applied for the proceedings to be dismissed, pursuant to s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) on the basis that the appellant has failed to attend a hearing relating to the appeal. In the circumstances it is appropriate to make that order.
The Court has taken all reasonable steps to notify the appellant of the hearing on the contact details he had provided to it. I am satisfied that the appellant has had proper notice of the hearing date.
The appellant’s interlocutory application to reinstate his appeal is dismissed, with cost.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 4 August 2021
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