EHH17 v Minister for Immigration and Border Protection
[2019] FCA 196
•21 February 2019
FEDERAL COURT OF AUSTRALIA
EHH17 v Minister for Immigration and Border Protection [2019] FCA 196
Appeal from: EHH17 v Minister for Immigration & Anor [2018] FCCA 2144 File number: NSD 1559 of 2018 Judge: KENNY J Date of judgment: 21 February 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court dismissing application for review of a decision of the Immigration Assessment Authority – non-appearance by the appellant at the hearing of the appeal – appeal dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) Legislation: Federal Court Rules 2011 (Cth) r 36.75 Date of hearing: 21 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: E Warner Knight of Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted to any order, save as to costs ORDERS
NSD 1559 of 2018 BETWEEN: EHH17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
21 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).
2.The appellant pay the first respondent’s costs of the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 7 August 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 4 August 2017. The IAA had affirmed a decision of a delegate of the respondent Minister not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa. The Federal Circuit Court judgment has the citation EHH17 v Minister for Immigration & Anor [2018] FCCA 2144.
On 14 February 2019, Ms Elizabeth Warner Knight, a lawyer employed by the Australian Government Solicitor with temporary responsibility for the conduct of the matter on the Minister’s behalf, advised my Chambers that the appellant would appear to have departed Australia. Consistently with her advice, the appellant did not appear at the hearing today, 21 February 2019. He has not filed written submissions in support of his appeal as required by the Court’s orders of 12 September 2018.
The Minister has applied for the appeal to be dismissed on the basis that the appellant has failed to appear at the hearing, pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). In support of this application, the Minister relied on two affidavits of Elizabeth Warner Knight, affirmed on 13 February 2019 and on 15 February 2019. Ms Warner Knight also appeared for the Minister.
In her first affidavit, Ms Warner Knight deposed that she had become aware that an officer of the Department of Home Affairs had identified that, according to the Department’s Integrated Client Services Environment (ICSE) database, the appellant had departed Australia on 7 January 2019. A screenshot of the Department’s movement records relating to the appellant was annexed to the affidavit. Ms Warner Knight also deposed that the ICSE visa record data maintained in respect of the appellant indicated that his Class WE, Subclass 050 visa (known as a “Bridging Visa E”) had ceased on 7 January 2019 and that accordingly the appellant had no present right of re-entry into Australia.
In her second affidavit, Ms Warner Knight deposed that the records of the Department showed that the appellant had departed Australia on 7 January 2019, under the Assisted Voluntary Removal program, which is facilitated by the International Organization for Migration.
Further, although the appellant has not advised the Court that he is no longer pursuing his appeal, it is apparent that he has not engaged with the Court’s processes. As already noted, he has neither filed written submissions, nor appeared today. Further, the Court has made numerous attempts to communicate with him, without success. By email dated 12 September 2018, the Court sought to give the appellant notice that his appeal would be heard in Sydney during the sitting period 4 February – 1 March 2019 and that directions had been made to prepare the appeal for hearing. On 21 January 2019, the Court sought to notify the parties by email that the matter had been listed for hearing at 10.15am today. Chambers staff subsequently sent a further email to the appellant’s notified email address, noting that he had not filed written submissions as required and advising him that if he did not attend today’s hearing, the Court might proceed in his absence. The Court has received no response to any of its emails. Most recently, on 18 February 2019, Chambers staff unsuccessfully called the telephone number provided by the appellant on his notice of appeal, to remind him of today’s hearing. The appellant’s non-attendance today, as well as his failure to respond to the Court’s attempts to communicate with him this year, are explained, it seems, by the fact that he chose to leave Australia in early January this year.
Rule 36.75(1)(a)(i) of the Federal Court Rules provides that, if the 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. In the outlined circumstances, it is appropriate to dismiss the appeal, as contemplated by r 36.75 of the Federal Court Rules.
I am confirmed in this view by reference to the appellant’s notice of appeal. This sets a single ground of appeal, alleging that:
The Judge in the Federal Circuit Court committed legal errors when dismissing proceedings. The Judge failed to consider all of the grounds raised in a proper and reasonable manner.
The appellant has not put forward any basis for this assertion. Reference to the primary judge’s reasons indicates that his Honour gave careful consideration to the substance of the appellant’s case. The appellant’s appeal would appear to have no prospect of success.
I would dismiss the appeal pursuant to r 36.75(1)(a)(i) of the Federal Court Rules, and further order that the appellant pay the first respondent’s costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 21 February 2019
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