CVN16 v Minister for Immigration and Border Protection

[2018] FCA 1371

FEDERAL COURT OF AUSTRALIA

CVN16 v Minister for Immigration and Border Protection [2018] FCA 1371

Appeal from:	CVN16 v Minister for Immigration and Border Protection [2018] FCCA 292
File number:	NSD 354 of 2018
Judge:	BANKS-SMITH J
Date of judgment:	6 September 2018
Catchwords:	MIGRATION -  appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of decision of Immigration Assessment Authority to refuse protection visa - where no appearance at hearing - where appellant no longer in Australia
Legislation:	Federal Court Rules 2011 r 36.75
Date of hearing:	29 August 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Ms N Laing
Solicitor for the First Respondent:	HWL Ebsworth
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

NSD 354 of 2018

BETWEEN:

CVN16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	29 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).

2.The appellant pay the first respondent's costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: CVN16 v Minister for Immigration and Border Protection [2018] FCCA 292.

2. The appellant filed a notice of appeal on 13 March 2018.  On 20 April 2018 a Registrar of this Court ordered, amongst other things, that the appellant file any submissions ten days prior to the hearing.

3. The Court informed the appellant of the hearing date by correspondence from my Associate sent to the email address provided to the court by the appellant.  I have reviewed that correspondence.

4. The appellant was absent when the appeal was called on for hearing on 29 August 2018.  The appellant was called in the Court precinct but there was no response.  The Court received no communications from the appellant about the hearing despite frequent emails addressed and copied to him in the weeks prior to the hearing.  At the hearing, Counsel for the Minister informed me that her instructors had been formally advised by their clients that the appellant has voluntarily left the country.

5. Counsel moved for an order that the appeal be dismissed under r 36.75 of the Federal Court Rules 2011 (Cth). That rule provides:

   (1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

   (a)   if the absent party is the appellant:

   (i)     the appeal be dismissed; or

   (ii)     the hearing be adjourned; or

   (iii)     the hearing proceed only if specified steps are taken; or

   (b)   if the absent party is the respondent:

   (i)the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

   (ii)     the hearing be adjourned; or

   (iii)     the hearing proceed only if specified steps are taken.

   (2)If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

   (a)   setting aside or varying the order; and

   (b)   for the further conduct of the hearing.

6. In the above circumstances and taking into account the lack of any communications from the appellant, I dismiss the appeal under r 36.75(1)(a)(i) of the Federal Court Rules with costs.

7. I also note that as the appellant is no longer in the country, it appears that he is not eligible to be granted the protection visa which is the subject of the decision of the Authority of which the appellant sought judicial review, and the appeal therefore lacks utility.

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

Associate:

Dated:        6 September 2018