BVW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1458
•9 November 2021
FEDERAL COURT OF AUSTRALIA
BVW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1458
Appeal from: BVW19 v Minister for Immigration & Anor [2019] FCCA 3208 File number(s): NSD 1977 of 2019 Judgment of: GREENWOOD J Date of judgment: 9 November 2021 Catchwords: MIGRATION – consideration of an application to dismiss an appeal proceeding Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 12 Date of last submission/s: 9 November 2021 Date of hearing: 9 November 2021 Counsel for the Appellant: The appellant did not appear Solicitor for the Respondents: Mills Oakley ORDERS
NSD 1977 of 2019 BETWEEN: BVW19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICLUTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
9 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:
On 7 November 2019, the Federal Circuit Court of Australia (the “FCCA”) published a judgment and made orders dismissing a proceeding commenced by the present appellant in the Federal Circuit Court of Australia by which the appellant sought judicial review of a decision of the Administrative Appeal Tribunal (the “Tribunal”) of 10 April 2019.
On 28 November 2019, the appellant filed a notice of appeal in this Court. Four grounds of appeal are relied upon. First, the FCCA identified a wrong issue. Second, the FCCA disregarded relevant material. Third, the FCCA “applied an incorrect interpretation and/or application” of the facts to the applicable law. Fourth, the FCCA “made a wrong interpretation of the law”.
The notice of appeal is supported by a very brief affidavit of the appellant also filed on 28 November 2019. In that affidavit, the appellant says that he does not have a lawyer to assist him with the appeal. The appellant also filed a further affidavit on 31 January 2020 in which he says that he is not a lawyer. He says again that he does not have the assistance of a lawyer and says that without advice he is unable to prepare submissions. He also says in that affidavit that as at 28 January 2020 he sought to have the appeal heard in 2021.
By the appeal, the appellant seeks to set aside the decision and orders of the primary judge and in place of the orders dismissing the application with costs, the appellant seeks orders remitting the matter to the Tribunal to be decided according to law together with an order or direction that he be permitted to put new information before the Tribunal.
On 23 January 2020, Registrar McCormick made a series of programming orders for the preparation of an Appeal Book among other matters.
The Appeal Book was prepared and filed by the first respondent, the Minister, on 14 May 2020.
On 30 August 2021, the first respondent filed an affidavit of Ms Nicola Johnson. Ms Johnson is a solicitor employed by Mills Oakley, the solicitors for the first respondent. Ms Johnson has the carriage and conduct of the matter. On 11 August 2021, Ms Johnson received an email from the Department of Home Affairs attaching various screenshots of entries in the Department’s “Movement History Records System and Integrated Client Service Environment” (“ICSE”) database. Annexure NJ‑1 to Ms Johnson’s affidavit is a true copy of a screen shot from that database recording the appellant’s details and movement history. Under the subheading “Movement History” the screenshot records the date and time when the appellant arrived in Australia and the date and time when the appellant departed Australia. Annexure NJ‑1 shows that the appellant departed Australia on 25 April 2021 at 8:05pm. The appellant has not returned to Australia since that date. Annexure NJ‑2 to Ms Johnson’s affidavit consists of true copies of two ICSE screenshots provided by the Department. The first screenshot records that the appellant’s status is described as “Offshore”. The second screenshot records the appellant’s visa grant history. It shows that the appellant was last granted a visa or a variation to a visa on 10 May 2019. It also shows that the class of visa last granted to the appellant is described as “WC‑030”. It also shows that the status of the appellant’s visa is described as “Cancelled”.
Accordingly, the appellant left Australia on 25 April 2021 at 8:05pm and has not returned to Australia. His WC‑030 visa granted on 10 May 2019 ceased and no longer provides a basis for valid re‑entry into Australia.
On 5 November 2021, my Associate sent an email to the solicitor for the first respondent and to the appellant’s email address providing details of the way that each of the parties would be able to attend today’s case management conference by Microsoft Teams.
The appellant has not responded to the email and has not attended the case management hearing.
I am satisfied that the appellant has abandoned the appeal and is not in a position to prosecute the appeal.
Accordingly, the appeal will be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 9 November 2021
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