CIR15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1952

FEDERAL COURT OF AUSTRALIA

CIR15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1952

Appeal from:

CIR15 v Minister for Immigration & Anor [2019] FCCA 1413

File number:

NSD 990 of 2019

Judge:

O'BRYAN J

Date of judgment:

21 November 2019

Catchwords:

MIGRATION – appeal from Federal Circuit Court of Australia – no appearance by appellant – appeal dismissed

Legislation:

Migration Act 1958 (Cth) s 65

Federal Court Rules 2011 r 36.75(1), 36.75(2)

Date of hearing:

21 November 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Appellant:

The Appellant did not appear

Solicitor for the First Respondent:

Ms J Noakesmith of DLA Piper Australia

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 990 of 2019

BETWEEN:

CIR15

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	O'BRYAN J
DATE OF ORDER:	21 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed under rule 36.75(1) of the Federal Court Rules 2011.

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

3.The Minister give written notice to the appellant that:

(a)The appellant has the right to apply to the Court under rule 36.75(2) of the Federal Court Rules 2011 to set aside orders 1 and 2 and for the further conduct of the hearing of the appeal.

(b)Any such application should be made promptly and be made returnable before O’Bryan J and should be supported by:

(i)an affidavit explaining the circumstances in which the appellant failed to attend the hearing today, including evidence of the death of the appellant’s grandfather; and

(ii)a written submission as to the basis of and merits of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1           This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 27 May 2019 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 October 2015: see CIR15 v Minister for Immigration & Anor [2019] FCCA 1413. The Tribunal had affirmed a decision of a delegate of the Minister made on 25 August 2015 under s 65 of the Migration Act1958 (Cth) (Act) refusing to grant the appellant a protection visa.

2           The appellant commenced this proceeding by filing an application for an extension of time in which to appeal on 25 June 2019.  On 13 August 2019, the Court ordered that the draft notice of appeal received by the Court on 25 June 2019 be treated as a filed notice of appeal. The Court also made orders for written submissions to be filed by the appellant and the Minister prior to the hearing of the appeal.

3           A written outline of submissions has been filed and served on behalf of the Minister but no written submissions have been filed on behalf of the appellant. 

4           The hearing of the appeal was listed for 10.15am today. 

5           On 6 November 2019, the solicitors for the Minister sent a letter to the appellant by courier and by email enclosing a copy of the Minister’s submissions.  By that letter, the solicitors for the Minister reminded the appellant that the appeal was listed for hearing on today’s date at 10.15am and also advised the appellant that if he did not attend the hearing the Minister may seek orders from the Court that the appeal be dismissed and the appellant pay the Minister’s costs. 

6           On 19 November 2019, the Court received a letter from the appellant dated 17 November 2019 which stated:

I regretfully would like to advise all the relevant parties that I am unable to attend the hearing scheduled at 10.15 am on 21 November 2019 because my grandfather's sudden death on 16 November 2019. I have been mourning over his death and I am not allowed to visit public places and events according to my religious belief and family tradition for 13 days from 16 November to 29 November 2019. I sincerely request the scheduled hearing be vacated and rescheduled after 29 November 2019. I hope my belief and family tradition will be considered and respected. Thank you for your sympathetic approach in consideration of my request.

7           The letter was not supported by any evidence.  The Court sent an email to the appellant on 19 November 2019 in response asking the appellant to provide evidence of his grandfather’s death and a statutory declaration concerning the matters referred to in the letter for the Court to consider.  The email advised the appellant that the Court would not make a decision on the requested adjournment until it had received that material.  No response to that email was received.

8 When the appeal was called on for hearing at 10.15am today there was no appearance by the appellant. The Minister has sought an order under rule 36.75(1) of the Federal Court Rules2011 dismissing the appeal on the basis that the appellant was absent when the appeal was called on for hearing.

9 In the circumstances, I will make that order. The appellant has the right under rule 36.75(2) to apply to the Court to set aside that order and for the further conduct of the hearing of the appeal. I will direct the Minister to inform the appellant of that right in writing. I will also direct the Minister to inform the appellant that any such application should be made returnable to me, that it should be made promptly and that it should be supported by:

(a)an affidavit explaining the circumstances in which the appellant failed to attend the hearing today, including evidence of the death of the appellant’s grandfather; and

(b)a written submission as to the basis and merits of the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.

Associate:

Dated:       21 November 2019