BGO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1962
•14 November 2019
FEDERAL COURT OF AUSTRALIA
BGO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1962
Appeal from: BGO16 v Minister for Immigration and Anor [2018] FCCA 1107 File number: NSD 634 of 2018 Judge: LOGAN J Date of judgment: 14 November 2019 Date of hearing: 14 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 6 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 634 of 2018 BETWEEN: BGO16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
14 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The first respondent’s name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The present appeal was listed for hearing today. Notice of that listing was sent by the Court’s registry to each of the parties by an email of 11 September 2019. As to the appellant, I note that the email address used for that purpose was that shown on the Notice of Appeal. The email was received by the Minister’s solicitors and the subject of acknowledgment by a return email of 20 September 2019. I infer from the receipt of the listing email by the Minister’s solicitors that it is more likely than not that the email was received also at the appellant’s email address.
On 23 September 2019, the Minister’s solicitors sent to the appellant, at the appellant’s nominated email address, an email which reminded the appellant of the listed hearing date, and also gave notice of an intention on the part of the Minister to apply for judgment in default of appearance, in the event that there were no appearance by the appellant on the listed hearing date. That same sentiment was conveyed to the appellant by a letter dated 7 November 2019 from the Minister’s solicitors, sent to the appellant by express post on 7 November 2019.
When the case was called on for hearing today at the time listed for its hearing, the appellant was not present at the bar table. The Minister did appear, as did the interpreter. I then directed the court officer to call the name of the case three times in the public area. The court officer’s report was that there was no appearance. Upon that report being made, the Minister’s solicitors then applied for the dismissal of the appeal on the basis of a failure to appear and, via that, on the basis of a want of prosecution.
The factual foundation for such an application is made out. Further, I am satisfied that the appellant has had due notice of the contingency of dismissal for failure to appear.
It may, of course, be that there is some explanation for the appellant’s failure to appear today, which is sufficient to see the case restored to the list. But that is a matter for the appellant to provide and on the basis of any such explanation, and any submission by the Minister, for the Court to be persuaded.
For the present, it only comes to this. On the basis of a failure to appear, I dismiss the appeal.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 22 November 2019
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