Joseph v Minister for Home Affairs

[2019] FCA 582

FEDERAL COURT OF AUSTRALIA

Joseph v Minister for Home Affairs [2019] FCA 582

Appeal from:	Joseph v Minister for Immigration and Border Protection and Anor [2018] FCCA 1478
File number:	VID 692 of 2018
Judge:	BROMBERG  J
Date of judgment:	17 April 2019
Catchwords:	MIGRATION – where the applicant failed to attend – appeal dismissed.
Legislation:	Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)
Cases cited:	Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394
Date of hearing:	17 April 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First Respondent:	Mr van der Westhuizen of DLA Piper Australia
Counsel for the Second Appellant:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 692 of 2018

BETWEEN:

JOMON JOSEPH

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	17 APRIL 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 25 May 2018 and published as Joseph v Minister for Immigration and Border Protection and Anor [2018] FCCA 1478. By that judgment, the primary Judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal affirming the decision of the delegate of the first respondent not to grant the appellant a Skilled (Provisional) (Class VC) visa.

2. The appellant’s appeal was listed for hearing commencing this morning at 10.15 am.  When the matter was called on for hearing, there was no appearance by the appellant.  I am satisfied by reference to the affidavit of Ms Garreffa, affirmed on 15 April 2019,  that the appellant has been given notice of the hearing date for the appeal and of the consequences which may arise from his non‑attendance at the hearing.  Those consequences include the possibility that his appeal will be dismissed.  I have also been appraised of an attempt to contact the appellant by telephone just prior to the hearing commencing, but that attempt was unsuccessful. 

3. As was outlined by Gray J in Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [10], there are three possible courses open to me owing to the non-appearance of the appellant. I could adjourn the hearing of the appeal and provide the appellant with a further opportunity to attend at a later time. I could exercise the power given to the Court by section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal for the failure of the appellant to attend the hearing. Alternatively, I could proceed to attempt to deal with the appeal on its merits in the absence of the appellant.

4. For the reasons given at [11]-[13] of Al Mamun by Gray J, I take the view that in the circumstances the interests of justice would be best served by making an order dismissing the appeal on the ground of the failure of the appellant to attend the hearing. 

5. Accordingly, I will make an order dismissing the appeal and further order that the appellant pay the Minister’s costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:       24 April 2019