Eoh19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 455

FEDERAL COURT OF AUSTRALIA

EOH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 455

Appeal from:	EOH19 v Minister for Immigration & Anor [2020] FCCA 1144
File number(s):	NSD 723 of 2020
Judgment of:	FARRELL J
Date of judgment:	27 April 2021
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the responsible Minister to not grant a Safe Haven Enterprise (subclass 790) visa – where appellant did not appear at the hearing - appeal dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Federal Court Rules 2011 (Cth) r 36.75
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	4
Date of hearing:	27 April 2021
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Ms C Ernst
Solicitor for the First Respondent:	HWL Ebsworth
Counsel for the Second Respondent:	The Second Respondent submitted to any order of the court, save as to costs

ORDERS

NSD 723 of 2020

BETWEEN:

EOH19

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	FARRELL J
DATE OF ORDER:	27 APRIL 2021

THE COURT NOTES THAT:

Pursuant to r 36.75(2) of the Federal Court Rules 2011 (Cth), the appellant may apply to the Court for an order setting aside or varying Order 1 and for the further conduct of the hearing of the appeal.

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules, the appeal is dismissed with costs.

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

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

FARRELL J:

1. By a notice of appeal lodged in the Court on 1 July 2020, the appellant appeals from a decision of the Federal Circuit Court of Australia in EOH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1144. The FCCA judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 23 October 2019 to affirm a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 17 September 2019 not to grant the appellant a Safe Haven Enterprise subclass 790 visa.

2. At the time the notice of appeal was filed, the appellant was legally represented.  However, as noted in orders made on 28 January 2021, his legal representative filed a notice of ceasing to act on 2 November 2020.  The Court listed a case management hearing for 28 January 2021 for the purpose of setting a hearing date, but the appellant did not appear at it.  The Court accordingly set a further case management hearing, which was listed for 11 February 2021 at 10.30 am Adelaide time/11 am Sydney time.  The appellant appeared at that case management hearing where a timetable was set for the preparation of the matter for hearing, which included provision for the appellant to file an amended notice of appeal, should he wish to do so, and to file a written outline of submissions.  Neither of those steps was taken.

3. The hearing of the appeal was listed for 10.30 am Adelaide time/11 am Sydney time today.  The appellant did not appear at that time.  The Minister attempted to contact the appellant on a mobile phone number held by the Court, with the assistance of an interpreter.  I am advised by Ms Ernst, the Minister’s counsel, that she left a message with the assistance of the interpreter advising the appellant that the time for the hearing of the appeal had now passed, that the matter had been adjourned to 11 am Adelaide time, and that if the appellant did not then appear, the Minister would seek orders dismissing the appeal, with costs.  When the hearing resumed shortly after 11 am Adelaide time/11.30 am Sydney time, the appellant did not appear.  The matter was called outside the courtroom in Adelaide with no response.  The Minister made the application foreshadowed in the telephone call.

4. I am satisfied that it is, in all of those circumstances, appropriate to make an order pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) dismissing the appeal with costs, and I will make that order accordingly.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.

Associate:

Dated:       3 May 2021