DFD16 v Minister for Immigration and Border Protection
[2018] FCA 1216
•9 August 2018
FEDERAL COURT OF AUSTRALIA
DFD16 v Minister for Immigration and Border Protection [2018] FCA 1216
Appeal from: DFD16 v Minister for Immigration [2018] FCCA 136 File number: SAD 44 of 2018 Judge: WHITE J Date of judgment: 9 August 2018 Catchwords: MIGRATION – migration appeal – appeal against a decision of the Federal Circuit Court affirming the refusal of a Protection visa – appeal dismissed by reason of non‑attendance of Appellant. Legislation: Federal Court Rules 2011 (Cth) r 36.75 Date of hearing: 9 August 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Ms A Wells Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
SAD 44 of 2018 BETWEEN: DFD16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
9 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed pursuant to r 36.75(1) of the Federal Court Rules (Cth) 2011.
2.The Appellant is to pay the costs of the First Respondent of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
The Court was to hear today an appeal against a judgment of the Federal Circuit Court (the FCC) made on 30 January 2018. By that judgment, the FCC dismissed the Appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the refusal of the Appellant’s application for a Protection Visa.
The Appellant has not attended the hearing. In his proceedings in the FCC, the Appellant had legal representation including representation, by senior counsel. In relation to the present appeal, the Appellant has not had legal representation.
The appeal was set down on 10 July 2018 for hearing today and notice to that effect was given to the parties.
Earlier, on 4 April 2018, a Registrar of the Court had made orders with respect to the preparation of the appeal book, the provision of outlines of submissions and lists of authorities. A copy of those orders was provided to the Appellant on or shortly after 4 April 2018. The Court’s notice of 10 July 2018 was sent to the address which the Appellant had shown on the filed Notice of Appeal. However, on 16 April 2018, the Appellant had filed a notice of address for service showing that his address was now a Post Office Box at Virginia in Adelaide’s north. Accordingly, shortly after 10 July 2018, the Court also sent a copy of the notice of today’s listing to the Appellant at the address shown on that notice.
The Appellant has not complied with the Court’s orders with respect to the provision of an outline of submissions or other documents in support of his appeal and, subject to one matter, has not otherwise communicated with the Court indicating an intention on his part to prosecute the appeal. He did, however, attend the Court’s Registry yesterday, apparently in the company of another person, seeking a waiver in respect of some Court fees.
As indicated, the Appellant was not present when the matter was called on this morning at 10 am. The Court then adjourned the hearing to 10.30 am to allow for the contingency that the Appellant had been delayed in travelling to the Court. However, the Appellant had not appeared by 10.30 am and now, some 15 minutes later, he has still not appeared. I add that, shortly before 10 am this morning, Court staff telephoned the mobile telephone number provided by the Appellant twice but were unable to make contact with him.
Again, just before the Court resumed at 10.30 am, Court staff telephoned the mobile telephone number provided by the Appellant but were still unable to make contact with him. In addition, the Court staff have not been able to make contact with the person who has provided some support to the Appellant before today.
In the circumstances, counsel for the Minister submits that the appeal should be dismissed pursuant to the Court’s power in r 36.75 of the Federal Court Rules 2011 (Cth) (the FCR). That Rule provides (relevantly) that, if an appellant is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal be dismissed.
I am satisfied that it is appropriate to make that order. First, the Appellant has had ample notice of today’s hearing but has not attended. Secondly, the Appellant has not communicated with the Court or with the Minister’s solicitors to explain his non-attendance. Thirdly, apart from the fact that the Appellant attended the Court’s Registry yesterday, he has not otherwise shown an intention to prosecute the appeal.
There is no reason for the Court to suppose that the Appellant’s absence today is by reason of illness, accident or other justifiable cause. Substantial resources have been applied by the Court and by the Minister towards today’s hearing and those resources will be wasted if the matter is adjourned.
For these reasons, the order of the Court is that the appeal is dismissed pursuant to r 36.75(1) of the FCR.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 14 August 2018
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