BYB16 v Minister for Immigration and Border Protection

[2019] FCA 307

FEDERAL COURT OF AUSTRALIA

BYB16 v Minister for Immigration and Border Protection [2019] FCA 307

Appeal from:	BYB16 v Minister for Immigration & Anor [2018] FCCA 2469
File number:	NSD 1653 of 2018
Judge:	WIGNEY J
Date of judgment:	14 February 2019
Catchwords:	MIGRATION – where no appearance from appellant – where application dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) because of absence of party – application dismissed with costs
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing:	14 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	5
Solicitor for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	Mr M Gao of Australian Government Solicitor
Solicitor for the Second Respondent:	The second respondent filed a submitting notice save as to costs.

ORDERS

NSD 1653 of 2018

BETWEEN:

BYB16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	14 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)

WIGNEY J:

1. In this matter, the appellant, who has been given the pseudonym BYB16, appeals against the judgment and orders of a judge of the Federal Circuit Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal. 

2. The appellant’s appeal was specifically listed for hearing to commence at 10.15 am on 14 February 2019.  The appellant did not appear at that time.  I delayed the commencement of the hearing until 10.30 am so as to give the appellant more time to appear.  When I came onto the bench at 10.30 am, a court officer called the appellant by his pseudonym three times outside Court.  There was no appearance by or for the appellant. 

3. The legal representative for the first respondent, the Minister for Immigration and Border Protection, applied for the appeal to be dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

4. For more abundant caution, I adjourned the appeal for another hour, until 11.30 am, to give the appellant a further opportunity to either appear or contact the Court or the first respondent’s legal representatives to explain why he had not appeared.  At 11.30 am, when I returned to the bench, the appellant was again called by his pseudonym three times outside Court.  There was still no appearance by the appellant.  By that time my Associate had made inquiries with Registry and been informed that the appellant had not contacted the Registry in relation to the hearing of his appeal or his non-appearance. 

5. In all the circumstances, the appropriate course, given the appellant’s non-appearance and the absence of any explanation for it, is to dismiss the appeal pursuant to r 36.75(1)(a)(i) of the Federal Court Rules. The appellant should be ordered to pay the Minister’s costs.

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

Associate:       

Dated:       6 March 2019