DYU17 v Minister for Immigration and Border Protection
[2019] FCA 1366
•23 August 2019
FEDERAL COURT OF AUSTRALIA
DYU17 v Minister for Immigration and Border Protection [2019] FCA 1366
Appeal from: DYU17 v Minister for Immigration and Border Protection [2019] FCCA 824 File number: WAD 206 of 2019 Judge: JACKSON J Date of judgment: 23 August 2019 Catchwords: MIGRATION - notice of appeal from decision of Federal Circuit Court dismissing application for judicial review - no appearance by appellant - no reasonable prospect of success in appeal - application dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing: 23 August 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Ms SJ Oliver Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 206 of 2019 BETWEEN: DYU17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
JACKSON J
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.Pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed.
2.The appellant must pay the first respondent's costs of the appeal, fixed in the sum of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(revised from the transcript)JACKSON J:
This is an appeal from a decision of the Federal Circuit Court of Australia, dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent (the Minister), refusing the appellant's application for a safe haven enterprise visa, which is a form of protection visa.
At the commencement of today's hearing of the appeal, there was no sign of the appellant. The court officer called the appellant's name three times outside court and there was no response. In addition, there is evidence before me that the appellant has received notification of the date and time of this hearing, as well as the possible consequences for him if he does not attend the hearing, on the following occasions.
(1)On 9 July 2019, the court emailed notice of the listing to the appellant, which warned him that orders determining the matter (including an order as to costs) could be made in his absence if he did not attend court at the specified time.
(2)On 10 July 2019, my chambers sent an email to the appellant, repeating and confirming the date and time of listing.
(3)On 11 July 2019, the solicitors for the Minister sent a letter by express post to the appellant, advising of the date and time of the hearing.
(4)On 15 August 2019, my chambers emailed the appellant again, noting that the deadline for the appellant to file written submissions had passed and indicating, once again, that the appeal may be dismissed in his absence if he did not attend the hearing.
(5)On 16 August 2019, the solicitors for the Minister sent an email to the appellant, attaching a letter, which also appears to have been sent by express post, reconfirming that the matter had been listed for hearing today, at 2.15 pm. The letter warned the appellant that if he did not appear at the hearing, the solicitors for the Minister may be instructed to ask the court to dismiss the appeal without further notice to him. It foreshadowed to the appellant that it may be possible for him to make alternate arrangements if he was unable to be in Perth on the day of the hearing. For example, it was open to him to apply for leave to appear by video or telephone.
It is therefore apparent that the appellant has had ample notice of the date and time of this hearing and the possible consequences for him if he should not attend the hearing.
There is no evidence of any communication, either to my chambers or to the solicitors for the Minister, indicating that the appellant would not attend, let alone providing any explanation as to why. In the circumstances, I have a discretion to dismiss the appeal both under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), and under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). The Minister has applied today for an order dismissing the appeal under both of those provisions.
Apart from the appellant's unexplained absence at the hearing, it is relevant to note that the sole ground set out in his notice of appeal is:
The Primary Judge didn't adequately examine the evident that was placed there by didn't exercise the Courts proper Jurisdiction.
The ground of appeal is thus entirely generic. It is unparticularised and does not provide any guidance to the court as to any particular error which it is said the primary judge made. While that by itself would not have been sufficient reason to dismiss the appeal if the appellant had appeared at the hearing (as a self-represented litigant), it is relevant to the exercise of the discretion that arises because the appellant has failed to appear. Since he has not appeared, this very general ground requires the court to engage in pure speculation as to whether or not the appeal has any merit. The appellant, as I have indicated, did not file any written submissions which would shed any further light on any error said to have been committed by the primary judge.
While it is not the function of this court to identify error in the Federal Circuit Court decision for itself, nevertheless, I indicate that I have read the reasons for decision of the Immigration Assessment Authority in this matter and the reasons for decision of the primary judge. With respect, no error is evident in either of those sets of reasons. There is, therefore, simply no good reason why, in the interests of justice, it is necessary to deal with the substance of the appeal as a matter of discretion. The appellant has had ample notice of the need to appear today and the possible consequences if he does not.
The appellant's ground of appeal discloses no reasonable prospect of success and nor does a review of the reasons of the primary judge. I will, therefore, exercise my discretion to dismiss the appeal, due to the failure of the appellant to attend. For the sake of clarity, I indicate that I do so pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules. I note that once the order is made, r 36.75(2) will give the appellant a right to apply to set aside the order and to apply for an order concerning the further conduct of the hearing.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson. Associate:
Dated: 28 August 2019
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