CPJ15 v Minister for Immigration and Border Protection
[2018] FCA 1813
•20 November 2018
FEDERAL COURT OF AUSTRALIA
CPJ15 v Minister for Immigration and Border Protection [2018] FCA 1813
Appeal from: CPJ15 v Minister for Immigration and Border Protection & Another [2018] FCCA 176 File number: VID 93 of 2018 Judge: MURPHY J Date of judgment: 20 November 2018 Legislation: Migration Act 1958 (Cth) Date of hearing: Heard on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 93 of 2018 BETWEEN: CPJ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
20 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed for want of prosecution.
2.The Appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
In this proceeding the appellant appeals from a judgment of the Federal Circuit Court (FCC) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): see CPJ15 v Minister for Immigration and Border Protection & Another [2018] FCCA 176. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa pursuant to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
The appellant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion, from Batticoloa District, Eastern Province, Sri Lanka. He arrived at Christmas Island as an unauthorised maritime arrival on 9 August 2012. The appellant applied for a Protection (Class XA) visa. On 16 January 2014 a delegate of the Minister refused to grant the appellant a protection visa. On 31 January 2014 the appellant sought review of the delegate’s decision by the Tribunal. On 19 November 2015 the Tribunal affirmed the delegate’s decision. The appellant then applied for judicial review of the Tribunal decision by the FCC. On 29 January 2018, following a hearing, the FCC dismissed the application.
On 7 February 2018 the appellant filed a notice of appeal to this Court. On 16 February 2018 Registrar McCormick made orders requiring, amongst other things, that the appellant to file a written outline of submissions no later than 10 business days before the hearing date.
On 16 July 2018 Ms Ashlee Briffa, a Senior Lawyer with the Australian Government Solicitor, solicitor for the Minister, sent an email to Ms Caitlin Wu, a NCF Registrar of the Court, stating that she was instructed that the appellant had left Australia and did not have a visa which would allow him to return. Registrar McCormick sent an email to Ms Briffa on 17 September 2018 and requesting that she file an affidavit outlining all of the relevant facts known to the Minister about the appellant’s departure from Australia.
On 3 October 2018 Ms Briffa filed an affidavit affirmed that day in which she deposed that the Department of Home Affairs’ computer database recorded the appellant as having departed Australia on 11 July 2018, that he was still overseas as at 17 September 2018, and that he did not hold an Australian visa which would permit him to return to Australia.
The same day the National Operations Team of the Court advised the appellant that the appeal was listed for hearing on 21 November 2018 at 2.15 pm, doing so by email to the address he provided with his notice of appeal.
On 1 November 2018 my chambers advised the appellant that the appeal was listed for a case management hearing on 9 November 2018 at 9.30 am, doing so by email to the address he provided.
There was no appearance by the appellant at the case management hearing on the 9 November 2018. Ms Briffa appeared for the Minister and sought orders that the appeal be dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the Act) for failure to attend the case management hearing or under s 25(2B)(ba) of the Act for want of prosecution. I declined to dismiss the application at that stage and instead made a direction that the appellant inform the Court by 5.00 pm on 15 November 2018 as to whether he intended to proceed with the appeal.
I directed my Associate to write to the appellant in the following terms, which she did by email that day:
Dear [name omitted],
As you are aware, your appeal to this Court was listed for mention this morning at 9.30 am, and is listed for hearing on 21 November.
You did not appear at the mention. The representative of the Minister for Immigration and Border Protection told the Court that you are no longer in Australia, that you do not have a visa to return to Australia, and that you have failed to comply with an order to file written submissions by 7 November. The Minister’s representative is seeking that your appeal be dismissed for failure to appear at the mention and/or want of prosecution.
His Honour declined to make such orders this morning, but directed that you inform the Court whether you intend to proceed with your appeal by 5pm on Thursday, 15 November 2018. Please see the attached orders.
If you do not respond your appeal is liable to be dismissed.
The appellant did not contact the Court to advise that he intended to proceed with his appeal by the time specified, or at all. The appellant was copied into all communications from the Minister and the Court. He has not filed any document other than the notice of appeal and an affidavit in support when commencing the appeal, he has not filed a written outline of submissions in support of the appeal in accordance with the orders, and he did not contact the Court in response to the direction. In the circumstances I am satisfied that the appellant has abandoned the appeal and the proceeding is dismissed for want of prosecution pursuant to s 25(2B)(ba) of the Act, with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 20 November 2018
0