CQS16 v Minister for Immigration and Border Protection

[2018] FCA 172

FEDERAL COURT OF AUSTRALIA

CQS16 v Minister for Immigration and Border Protection [2018] FCA 172

Appeal from:	CQS16 v Minister for Immigration & Anor [2017] FCCA 749
File number:	NSD 680 of 2017
Judge:	MARKOVIC J
Date of judgment:	26 February 2018
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing:	26 February 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant did not appear
Solicitor for the First Respondent:	S Given, HWL Ebsworth Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

NSD 680 of 2017

BETWEEN:

CQS16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	26 FEBRUARY 2018

THE COURT ORDERS THAT:

1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) the appeal be dismissed.

2.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)

MARKOVIC J:

1. On 9 May 2017 the appellant filed a notice of appeal in this Court seeking to appeal the whole of the judgment of the Federal Circuit Court of Australia given on 27 April 2017.  On 14 June 2017 a Registrar of this Court made orders for the preparation of the hearing of the appeal and by email dated 29 December 2017, addressed to the appellant and the solicitor for the first respondent (Minister), the parties were notified that the appeal would be listed for hearing this morning commencing at 10.15 am at the Law Courts Building, Queens Square, Sydney before me.

2. On 22 February 2018 following the receipt two days earlier from the Minister’s solicitors, of copies of the Minister’s submissions and his list of authorities, the appellant sent an email to those solicitors which included the following:

   I am sick so I can’t come on Monday.  Could you please arrange the hearing on another day.  Thanks

3. The Minister’s solicitors sent a copy of the appellant’s communication to the Court by email, copied to the appellant, explaining that the appellant “seeks an adjournment on medical grounds”.  The email from the Minister’s solicitors continued in the following terms:

   We have not been provided with any evidence in support of such a request.  In the present circumstances, the first respondent opposes an adjournment of the hearing, and I will appear at the hearing for the first respondent, unless otherwise advised.

4. Later, on 22 February 2018, the New South Wales Appeals Unit of this Court sent an email to the appellant and the Minister’s solicitors confirming that, as no formal application for an adjournment had been made, the appeal remained listed before me at 10.15 am on 26 February 2018. 

5. The Minister’s solicitors sent a subsequent email to the appellant on the afternoon of 22 February 2018 in the following terms:

   As the Court has now confirmed that your matter remains listed for hearing at 10.15 am on 26 February 2018 at the Federal Court of Australia, Law Courts Building, Queens Square 184 Phillip Street, Sydney NSW 2000, we remind you that that (sic) if you do not attend the scheduled hearing, we will seek orders from the Court that your appeal be dismissed with costs.

6. This morning when the appeal was called on for hearing there was no appearance by the appellant.  The matter was called three times outside the Court and the appellant did not appear.  It is clear from the email exchange that occurred over the past few days that the appellant was aware that the matter was listed this morning at 10.15 am and that, there being no formal application made by him, the hearing had not been adjourned and would proceed this morning.

7. The Minister has applied for the appeal to be dismissed with costs pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). In the circumstances of this case, there is no reason why such an order should not be made. I will accede to the Minister’s application and make an order in those terms.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:        27 February 2018