BTC16 v Minister for Immigration and Border Protection

[2022] FCA 300

FEDERAL COURT OF AUSTRALIA

BTC16 v Minister for Immigration and Border Protection [2022] FCA 300   

Appeal from:	BTC16 v Minister for Immigration & Anor [2019] FCCA 3031
File number:	VID 1172 of 2019
Judgment of:	BROMBERG J
Date of judgment:	23 March 2022
Catchwords:	PRACTICE AND PROCEDURE – application to dismiss appeal – r 36.74 and r 36.75 of the Federal Court Rules 2011 (Cth) – where the appellant did not appear at hearings related to the appeal – appeal dismissed
Legislation:	Federal Court Rules 2011 (Cth) rr 36.74, 36.75
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	5
Date of hearing:	23 March 2022
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First Respondent:	Mr A Cunynghame of Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

VID 1172 of 2019

BETWEEN:

BTC16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	BROMBERG J
DATE OF ORDER:	23 MARCH 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

3.The first respondent serve upon the appellant a copy of these orders and a copy of the transcript of today’s hearing. 

4.References in the transcript to the appellant’s name be replaced with the acronym BTC16.

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 has filed a notice of appeal appealing the judgment of the Federal Circuit Court of Australia (as it was then known) of 25 October 2019 which dismissed his application for judicial review of a decision of the second respondent which had affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s application for a protection visa. 

2. On the evidence before me, I am satisfied that the appellant left Australia on 2 December 2022. Up until that point in time, the appellant held a bridging visa. Having departed Australia, the bridging visa ceased and on the evidence before me the appellant does not hold a visa which would permit re-entry into Australia. In those circumstances and having notified the appellant of its intention to do so, at an online hearing held on 9 March 2022, the Minister made an application pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (Rules) that the appeal be dismissed with costs on the basis of the appellant’s non-attendance at the hearing.

3. I declined to make such an order on that day and required the Minister to file and serve any further affidavit that it sought to rely upon and relisted the hearing.  Notice of the second hearing together with further notice of the Minister’s application for dismissal of the appeal was provided to the appellant on 10 March 2022.  The appellant did not attend the second hearing and the Minister moved for the dismissal of his appeal.

4. Rule 36.74 of the Rules relevantly provides that a respondent may apply for the dismissal of an appeal because of the failure of an appellant to attend a hearing related to the appeal. Rule 36.75 relevantly states that an appeal may be dismissed if the appellant is absent when an appeal is called on for hearing.

5. I am satisfied that the absence of the appellant warrants the dismissal of the appeal. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.

Associate:

Dated:       28 March 2022