Bta17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 730
•27 June 2023
FEDERAL COURT OF AUSTRALIA
BTA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 730
Appeal from: BTA17 v Minister for Immigration and Border Protection [2020] FCCA 1915 File number(s): NSD 893 of 2020 Judgment of: JACKMAN J Date of judgment: 27 June 2023 Catchwords: MIGRATION – appeal from decision of primary judge in Federal Circuit Court – interlocutory application for dismissal pursuant to the Federal Court Rules 2011 (Cth), r 36.74 – where a long period of time has transpired since the filing of the notice of appeal – where the appellant has failed to respond to any correspondence – where the appellant has departed overseas with no right of return – appeal dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.74 Cases cited: BTA17 v Minister for Immigration and Border Protection [2020] FCCA 1915 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 7 Date of hearing: 27 June 2023 Counsel for the Appellant: The Appellant did not appear. Solicitor for the First Respondent: T Goodwin of the Australian Government Solicitor ORDERS
NSD 893 of 2020 BETWEEN: BTA17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
27 JUNE 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The appeal be dismissed pursuant to r 36.74 of the Federal Court Rules 2011 (Cth) for the appellant’s non-appearance and failure to prosecute.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)JACKMAN J:
On 14 August 2020, the appellant filed a notice of appeal challenging the decision of the primary judge of the then Federal Circuit Court of Australia in BTA17 v Minister for Immigration and Border Protection [2020] FCCA 1915. The records available to the Department of Home Affairs indicate that the appellant departed Australia on 18 April 2023, that his visa expired on that day, and that he currently holds no visa permitting his return to Australia.
In light of the appellant’s departure, Ms Dejean, a solicitor with the Australian Government Solicitor acting for the first respondent, made numerous attempts to contact the appellant by email, copying in the registry of this Court. Ms Dejean’s purpose in sending those emails was to invite the appellant to inform whether he wished to proceed or to discontinue these proceedings, given that he is overseas and cannot return to Australia. The appellant did not respond to any of those emails.
On 6 June 2023, my associate advised the parties that the matter had been allocated to my docket and was listed for hearing on 4 October 2023. On 7 June 2023, Ms Dejean sent another email to the appellant and the registry, which gave the appellant notice that the first respondent would seek to have the matter listed for case management. When the appellant again did not reply to that email, on 19 June 2023 Ms Dejean emailed the registry, copying in the appellant, requesting that the matter be listed for case management to determine whether the appellant wished to proceed or if the matter should be dismissed for non-appearance. On 20 June 2023, my associate advised that I had listed the matter for case management on 27 June 2023.
The appellant has not responded to the Court nor to Ms Dejean. Ms Dejean has received no communication from the appellant, whether written or oral, in relation to any of the correspondence which is annexed to her affidavit and summarised above.
On Friday, 23 June 2023, the Australian Government Solicitor served by email an interlocutory application on the appellant seeking orders, relevantly, that the appeal be dismissed pursuant to r 36.74(1)(c) and/or (d) of the Federal Court Rules 2011 (Cth) (Rules) for the appellant’s non-appearance or failure to prosecute the appeal, and also that the appellant pay the first respondent’s costs. On Monday, 26 June 2023, the Australian Government Solicitor sent a further email to the appellant setting out the details for the hearing before me today and also enclosing sealed copies of the interlocutory application and affidavit in support, those being the same documents which had been served on Friday, 23 June 2023 in unsealed format. The letter enclosed with the email of 26 June 2023 expressly stated that the significance of these documents is that:
If you fail attend court tomorrow for your hearing when your matter is called, the first respondent will move on the interlocutory application and will ask that your appeal be dismissed with costs.
The letter also pointed out that if the appellant was unable to understand or speak English, then the appellant may contact the Court registry and ask for an interpreter in the appellant’s language to be present at the hearing.
There has been no appearance for the appellant today. In my view, in light of the very long period of time since the notice of appeal was filed, together with the appellant’s failure to respond to any of the communications sent to him by the Australian Government Solicitor or the Court, it is appropriate to make an order pursuant to r 36.74 of the Rules dismissing the appeal for the failure by the appellant to attend a hearing relating to the appeal and to prosecute the appeal. It seems to me that it would be an undue waste of resources of the first respondent and also of the Court to conduct a hearing on 4 October 2023 in those circumstances, together with the circumstance that the appellant has now left Australia and his visa has expired.
Accordingly I make the following orders in accordance with the interlocutory application filed by the first respondent:
(1)The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs;
(2)The appeal be dismissed pursuant to r 36.74 of the Rules for the appellant’s non-appearance and failure to prosecute;
(3)The appellant pay the first respondent’s costs.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 29 June 2023
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