Cfo17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FCA 1144

FEDERAL COURT OF AUSTRALIA

CFO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1144    

Appeal from:	CFO17 v Minister for Immigration & Anor [2020] FCCA 192
File number(s):	NSD 414 of 2020
Judgment of:	THAWLEY J
Date of judgment:	23 September 2022
Catchwords:	MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing an application for review of a decision by the Immigration Assessment Authority to refuse the applicant a Temporary Protection (subclass 785) visa – where appellant did not appear at the case management hearing or respond to communication in relation to the hearing – whether appeal should be dismissed – Held: appeal dismissed
Legislation:	Federal Court Rules 2011 (Cth) r 5.23
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	5
Date of hearing:	23 September 2022
Counsel for the Appellant:	The appellant did not appear at hearing
Counsel for the Respondents:	Mr M Gao of HWL Ebsworth
Solicitor for the Respondents:	HWL Ebsworth

ORDERS

NSD 414 of 2020

BETWEEN:

CFO17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	THAWLEY J
DATE OF ORDER:	23 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.Subject to order 3, the appeal be dismissed.

2.The first respondent serve a copy of these orders on the appellant: (a) personally; (b) by the email address identified in the notice of appeal, as soon as reasonably practicable.

3.Reserve liberty to the appellant to apply within 14 days of personal service pursuant to order 2 hereof, for an order vacating order 1 on sufficient cause being shown.

4.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

5.The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT
(Revised from transcript)

THAWLEY J:

1. This appeal was filed on 6 April 2020.

2. I listed the matter for a case management hearing in order to set a timetable for hearing. The appellant did not appear. The matter was called outside Court three times.

3. The Minister applied for an order under rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth) for an order dismissing the appeal and tendered a letter sent by express post to the appellant dated 21 September 2022 and an email sent on 21 September 2022 attaching that letter. A further email was sent by the first respondent’s solicitor on 23 September 2022 informing the appellant of the court room in which the case management hearing would be held. The first respondent’s solicitor has also unsuccessfully sought to contact the appellant by telephone.

4. The Court has also sought to communicate with the appellant via email but not received a response.

5. In the circumstances, I make the following orders:

   1.Subject to order 3, the appeal be dismissed.

   2.The first respondent serve a copy of these orders on the appellant: (a) personally; (b) by the email address identified in the notice of appeal, as soon as reasonably practicable.

   3.Reserve liberty to the appellant to apply within 14 days of personal service pursuant to order 2 hereof, for an order vacating order 1 on sufficient cause being shown.

   4.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

   5.The appellant pay the first respondent’s costs as agreed or assessed.

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

Associate:

Dated:       23 September 2022