BOR16 v Minister for Immigration and Border Protection

[2019] FCA 396

FEDERAL COURT OF AUSTRALIA

BOR16 v Minister for Immigration and Border Protection [2019] FCA 396

Appeal from:	BOR16 v Minister for Immigration and Border Protection [2018] FCCA 2253
File number:	VID 1189 of 2018
Judge:	BROMBERG  J
Date of judgment:	19 February 2019
Catchwords:	PRACTICE AND PROCEDURE – dismissal of appeal for want of appearance by appellant
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Cases cited:	Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394
Date of hearing:	19 February 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Mr C McDermott
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice, save as to costs

ORDERS

VID 1189 of 2018

BETWEEN:

BOR16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	19 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal is 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

BROMBERG J:

1. The appellant is a Malaysian national.  After arriving in Australia in May 2013, the appellant lodged an application for a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth) (“Act”).  A delegate of the first respondent (“the Minister”) refused to grant the visa. 

2. By his appeal, the appellant appeals the judgment of a judge of the Federal Circuit Court of Australia delivered on 30 August 2018 and published as BOR16 v Minister for Immigration and Border Protection [2018] FCCA 2253. By that decision, the primary judge rejected the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm the decision of the delegate of the Minister not to grant the appellant the visa.

3. The appellant’s appeal was listed for hearing commencing this morning at 10.15 am.  When the matter was called on for hearing, there was no appearance by the appellant.  The appellant had been legally represented but it appears that the appellant is no longer legally represented, the Court having received a Notice of Ceasing to Act dated 5 February 2019. 

4. I am satisfied that the appellant has been given notice of the hearing date for the appeal and the consequences which may arise from his non-attendance at the hearing.  Those consequences include the possibility that his appeal will be dismissed.  I am satisfied that such notice was given, including by reason of correspondence dated 8 February 2019 to the appellant from the solicitors representing the Minister.  I am also satisfied of that matter by reason of correspondence dated 12 February 2019 forwarded to the appellant by the solicitors representing the Minister.  I have also been appraised of the contact sought to be made with the appellant this morning at about 10.20 am when representatives of the Minister sought to contact the appellant using his last known mobile telephone number.  That attempt was unsuccessful.

5. As was outlined by Gray J in Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [10], there are three possible courses open to me owing to the non-appearance of the appellant. I could adjourn the hearing of the appeal and provide the appellant with a further opportunity to attend at a later time. I could exercise a power given to the Court by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal for the failure of the appellant to attend the hearing. Alternatively, I could proceed to attempt to deal with the appeal on its merits in the absence of the appellant.

6. For the reasons given at [11]-[13] of Al Mamun by Gray J, I take the view that in the circumstances, the interests of justice would be best served by making an order dismissing the appeal on the ground of the failure of the appellant to attend the hearing. 

7. Accordingly, I will make an order dismissing the appeal and a further order that the appellant pay the Minister’s costs. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        20 March 2019