BLU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 1348

FEDERAL COURT OF AUSTRALIA

BLU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1348

Appeal from:

Judgment of the Federal Circuit Court of Australia delivered by Judge Street on 3 October 2019

File number(s):

NSD 1742 of 2019

Judgment of:

BURLEY J

Date of judgment:

8 November 2022

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority to affirm the decision of a delegate of the Minister to refuse to grant the appellant a protection visa – where appellant was given notice of hearing to an email address from which he had previously responded confirming receipt of registrar directions – where appellant did not appear at hearing – appeal dismissed

Legislation:

Migration Act 1958 (Cth) pt 7AA

Federal Court Rules 2011 (Cth) r 36.75(1)(a)

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

6

Date of hearing:

8 November 2022

Counsel for the Appellant:

The appellant did not appear

Counsel for the First Respondent:

Mr J Kay Hoyle SC

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1742 of 2019

BETWEEN:

BLU19

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	8 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1. In these proceedings, the appellant appeals from a decision of the Federal Circuit Court of Australia as it was then known, dismissing an application to review a decision of the Immigration Assessment Authority under part 7AA of the Migration Act 1958 (Cth).

2. The notice of appeal was filed on 24 October 2019.  On 10 February 2020, a registrar of the court made directions for the conduct in the proceedings including for the filing of an outline of submissions by the appellant.  Those directions were acknowledged as received by the appellant by email on the same day according to the records of the court.

3. The respondent has tendered correspondence, which I have received as exhibits A, B, C and D, which consists of letters sent by post to the address given on the first page of the notice of appeal, and emails sent to the address notified on the first page of the notice of appeal dated 20 September 2022, a correcting email of 26 September 2022 which noted an incorrect email address in the first letter, and two further emails of 1 and 2 November 2022.  That correspondence served to notify, in addition to any notification provided by the court to the appellant, details of the hearing today.  The proceedings have been called three times outside court and the appellant has not appeared.

4. The appellant has not filed any written submissions or communicated with the court since the proceedings have first been filed, with the exception of the email to which I have referred.

5. In those circumstances it is appropriate that the proceedings be dismissed pursuant to Federal Court Rules 2011 (Cth) rule 36.75(1)(a). This was the application made by the first respondent and, in my view, the circumstances are appropriate for it to be made. I note that, in the event there is an explanation presently unknown to the court as to why the appellant has not participated in the hearing, then there is an opportunity for him to make an application under (2) of that rule.

6. Accordingly, the orders that I make are that the appeal be dismissed and the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Associate:

Dated:       8 November 2022