Exx18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 657
•16 June 2021
FEDERAL COURT OF AUSTRALIA
EXX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 657
Appeal from: EXX18 v Minister for Home Affairs [2019] FCCA 3552 File number: WAD 2 of 2020 Judgment of: JACKSON J Date of judgment: 16 June 2021 Catchwords: MIGRATION - appeal from the Federal Circuit Court - judicial review of a decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse grant of protection visa - appellant failed to appear at hearing - no error on part of primary judge asserted in notice of appeal - appellant seeking impermissible merits review - appeal dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.75 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 16 June 2021 Counsel for the Appellant: The appellant did not appear Counsel for the First Respondent: Mr A Gerrard 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 2 of 2020 BETWEEN: EXX18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
16 JUNE 2021
THE COURT ORDERS THAT:
1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed for default of appearance.
2.The appellant must pay the first respondent's costs of and incidental to the appeal, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
This is an appeal from a decision of the Federal Circuit Court of Australia in which that court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had, in turn, affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant a protection visa to the appellant.
At the commencement of the hearing today, there was no appearance by the appellant. The court officer called outside the court room for the appellant, but he has not appeared. The court has sent correspondence to the email address provided by the appellant to notify him of today's hearing date. This was done by email from the court to the parties on 19 April 2021 and an email from my Chambers on 9 June 2021 notifying the appellant of today's hearing date and stating that if he does not attend the hearing, that may result in the appeal being dismissed in his absence.
The court is confident that the appellant was aware of the hearing date and its potential significance, because on 14 June 2021 he emailed the registry of the court as follows (errors in original):
Hi this is [EXX18] .please withdraw my appeal from federal court which is due on Wednesday 10 am thanks.
The court advised the appellant that he would need to file a notice of discontinuance. A subsequent email from the appellant received around midday yesterday asked for a copy of the 'withdrawal form'. Shortly after, the court provided a copy of the notice of discontinuance form by reply email. Between that time and the commencement of the hearing, however, no notice of discontinuance has been lodged.
The Minister has now moved for the dismissal of the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), which relevantly provides that if a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order, if the absent party is the appellant, that the appeal be dismissed.
I am satisfied that an order in those terms is appropriate in the present case for the following reasons. Firstly, the appellant was made aware of the time and date of the hearing and has not appeared, nor (subject to the next point) has he proffered any explanation for his non-appearance.
Secondly, it can be inferred from the non-appearance combined with the communications with the court yesterday and the day before that the appellant does not intend to prosecute the appeal.
Thirdly, while an application for the dismissal of an appeal for non-appearance is not the occasion to make any determination as to the merits of the appeal, it is relevant to the exercise of the discretion to note that the notice of appeal here does not on its face contain grounds which, if accepted, would result in the appeal being allowed. The 'grounds' are in the form of a narrative of the appellant's history, including his history of coming to Australia in 2006 and staying here for several years pursuant to student visas, applying unsuccessfully for a skilled graduate visa, and his subsequent application for a protection visa. The grounds of appeal also state briefly the basis of a claim to protection, namely an alleged land dispute in the appellant's country of origin in 2014, and also briefly assert error on the part of the delegate and the Tribunal in relying, the appellant appears to suggest, on the appellant's delay in applying for the protection visa as 'the primary piece of information for refusal' of the visa.
Those matters all go to alleged error in the decision which was the subject of judicial review by the Federal Circuit Court, yet the grounds of appeal assert no error on the part of the Federal Circuit Court, even an error of a generic kind. The final 'ground' says:
I request the Federal Court to reassess my application in substitute of favourable judgment for me.
This reflects a misconception which is understandably common among self-represented applicants that the role of this court is to reassess the merits of their applications for a protection visa. That is, of course, not the role of this court. Nor was it the role of the Federal Circuit Court.
The role of this court on appeal is to determine whether there was any error in the judgment of the Federal Circuit Court. As I have said, no such error is asserted, even in general terms. Therefore, on the face of the notice of appeal, the appeal would seem to have had little merit.
For those reasons, it is appropriate to exercise the discretion afforded by r 36.75 to dismiss the appeal on the basis of the non-appearance of the appellant. The Minister will be awarded his costs of and incidental to the appeal.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 21 June 2021
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