DYL16 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 1378

FEDERAL COURT OF AUSTRALIA

DYL16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1378  

Appeal from:

DYL16 & Anor v Minister for Immigration & Anor [2020] FCCA 2244

File number(s):

NSD 1077 of 2020

Judgment of:

BURLEY J

Date of judgment:

8 November 2023

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where appellants did not appear – appeal dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth) r 36.75(1)(a)

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

6

Date of hearing:

8 November 2023

Counsel for the Appellants:

The Appellants did not appear

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

NSD 1077 of 2020

BETWEEN:

DYL16

First Appellant

DYM16

Second Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	8 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s cost of the appeal.

3.The first respondent serve a copy of these reasons for judgment, once published, on the appellants forthwith upon receiving them.

4.The first respondent’s name be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

BURLEY J:

1. In these proceedings, the appellants appeal from a decision of the Federal Circuit Court of Australia, as it was then known, dismissing an application to review a decision of the Administrative Appeals Tribunal under the provisions of the Migration Act 1958 (Cth).

2. The Notice of Appeal was filed on 11 September 2020.  On 29 September 2020, a Registrar of the Court made directions for the conduct of the proceedings, including for the filing of an outline of submissions by the appellants.  Those directions were sent to the appellants at the email address notified by them to the Court.

3. On 28 July 2023 and 19 September 2023, the Court sent by email further correspondence concerning the listing of the matter for hearing. The 19 September 2023 email included details of today’s hearing.

4. The first respondent has tendered correspondence dated 19 September 2023 and 11 October 2023, which indicates that they also provided details of today’s hearing to the appellants.  In the email of 11 October 2023, the appellants were notified that if they did not attend Court on the day indicated for the hearing, either by themselves or their legal representatives, the first respondent may apply for the matter to be dismissed with costs.  The proceedings were listed for hearing today, and the appellants have not appeared.  The matter was called three times outside of Court.  The appellants have not filed any written submissions or communicated the court in respect of any of the correspondence to which I have referred above.

5. In those circumstances, is it appropriate that the proceedings be dismissed pursuant to Federal Court Rules 2011 (Cth) rule 36.75(1)(a). This was the application made by the first respondent, and, in my view, the circumstances are appropriate for it to be made. I note that, in the event there is an explanation presently unknown to the Court as to why the appellants has not participated in the hearing, then there is an opportunity for them to make an application under (2) of rule 36.75. Although the first respondent has also made the application under section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), in my view, it is more appropriate that the orders be made under rule 36.75.

6. Accordingly, the orders that I make are that the appeal be dismissed and the appellants pay the first respondent’s costs of the appeal. I direct that the first respondent serve a copy of these reasons, once published, on the appellants forthwith upon receiving them.  

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Associate:

Dated:       9 September 2023