EWF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1968

FEDERAL COURT OF AUSTRALIA

EWF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1968

Appeal from:	EWF17 v Minister for Immigration & Anor [2019] FCCA 1511
File number:	NSD 1106 of 2019
Judge:	ABRAHAM J
Date of judgment:	20 November 2019
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing:	18 November 2019, 20 November 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1106 of 2019

BETWEEN:

EWF17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	ABRAHAM J
DATE OF ORDER:	20 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT
(Revised from transcript)

ABRAHAM J:

1. The appellant is a citizen of Sri Lanka who arrived in Australia on 21 October 2012 and on 21 November 2016 made an application for a Safe Haven Enterprise Visa (SHEV), claiming to fear harm on the basis of his ethnicity, imputed links with the Liberation Tigers of Tamil Eelam, his formerly residing in the Eastern Province, his illegal departure from Sri Lanka and for seeking asylum in Australia. The appellant referred to encounters with the Sri Lankan Army and the Karuna Group during the war, and with the Criminal Investigation Department following the war.

2. On 10 March 2017, a delegate of the Minister refused to grant the appellant a SHEV. On 16 October 2017, the Immigration Assessment Authority affirmed that decision, and on 28 June 2019 the Federal Circuit Court dismissed the appellant’s application for review of that decision: EWF17 v Minister for Immigration & Anor [2019] FCCA 1511. This is an appeal from that dismissal.

3. No particular complaint is made about the decision of the Court below, rather, the appellant stated he relied on the grounds he relied on in that Court. The appellant did not file any written submission in support of the grounds.

4. Prior to the hearing the appellant wrote to the Court requesting it be adjourned for two days as he was likely to have legal representation but that those persons were not available on the day allocated. Prior to the hearing the Court, by email, notified the appellant that the matter remained listed on the day fixed but that he could apply for an adjournment on that day if there were proper grounds to do so. The appellant did not appear at the hearing. The respondent applied for the appeal to be dismissed on the basis of the appellant’s non-attendance. Given the appellant’s last communication with the Court was to seek an adjournment for two days, this matter was adjourned for hearing until that day in case there had been any issue with communication of the messages to him.

5. The appellant was notified by the Court of the date of this hearing today. The respondent also sent the appellant by email and by express post correspondence confirming the matter was listed for today at 10:15am for hearing and that if he did not appear, there would be an application for his appeal to be dismissed for non-appearance. The respondent did not receive any response to this correspondence. The appellant did not appear on this adjourned date. No legal representatives have filed a notice of appearance, or any submissions in the matter. There has been no contact by the appellant since the request for adjournment.

6. In those circumstances the respondent again applied for the mater to be dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). The appropriate course is to dismiss the appeal.

   Conclusion

7. The appeal is dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

Associate:

Dated:       22 November 2019