BCG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCA 184

FEDERAL COURT OF AUSTRALIA

BCG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 184

Appeal from:

BCG16 v Minister for Immigration & Anor [2019] FCCA 2019

File number:

WAD 409 of 2019

Judge:

ABRAHAM J

Date of judgment:

25 February 2020

Legislation:

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth)

Date of hearing:

20 February 2020

Registry:

Western Australia

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

Counsel for the First Respondent:

C I Taggart

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs

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

JUDGE:	ABRAHAM J
DATE OF ORDER:	25 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the first respondent as 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:

1. 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 affirmed the delegate’s decision, and the Federal Circuit Court dismissed an application for judicial review of the Tribunal’s decision. This is an appeal from that decision.

2. The appellant was represented in the Court below, although he filed the appeal notice without the assistance of legal representation. He alleged only one ground of appeal:

   [t]he primary judge didn’t adequately examine the evident [evidence] that was placed there by didn’t exercise the Courts proper jurisdiction.

3. The ground of appeal is no more than a bare assertion, with no particulars to this ground provided. Nor, despite the orders as to the provision of written submissions, was any submission filed by the appellant.

4. When the matter was called on for hearing at the time allocated, the appellant failed to appear.

5. 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.

6. The appellant was notified by the Court of the date of this 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 2:15pm on 20 February 2020, and enclosing 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.

7. I am satisfied that the appellant has had proper notice of the hearing date.

8. In those circumstances, the respondent applied for the appeal to be dismissed pursuant to r 33.33 of the Federal Court Rules 2011 (Cth) on the basis that he had failed to attend at the time the matter was listed for hearing. However, given this is a hearing under Part 36, being an appeal in the Court’s appellate jurisdiction from a decision of the Federal Circuit Court, the appropriate rule is 36.75 which is relevantly in the same terms. The appropriate course is to dismiss the appeal.

   Conclusion

9. The appeal is dismissed.

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

Associate:

Dated:       25 February 2020