Mzaif v Minister for Immigration and Border Protection

[2016] FCA 555

FEDERAL COURT OF AUSTRALIA

MZAIF v Minister for Immigration and Border Protection [2016] FCA 555

Appeal from:	MZAIF v Minister for Immigration & Anor [2016] FCCA 334
File number:	VID 148 of 2016
Judge:	MURPHY J
Date of judgment:	18 May 2016
Catchwords:	PRACTICE AND PROCEDURE - dismissal of appeal for failure to appear
Date of hearing:	18 May 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First Respondent:	Mr A Day of DLA Piper
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDERS

VID 148 of 2016

BETWEEN:

MZAIF

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	18 MAY 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent's costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1. In this proceeding the appellant appeals from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (MZAIF v Minister for Immigration & Anor [2016] FCCA 334). The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, refusing to grant him a Protection (Class XA) visa.

2. On 21 March 2016 the National Appeals Registrar informed the appellant by post and email that the appeal was listed for hearing before me on 18 May 2016 at 10:15 am.  On 17 May 2016 the appellant sent an email to the solicitor for the first respondent, Aaron Day of DLA Piper which said:

   I am [appellant’s name].  I am sending this mail requesting you to cancel my hearing.

   My hearing will be on Wednesday 18^th of May (Reference Number VID 148 / 2016).  So I want to cancel this.  So I am requesting you to cancel this.  Please put this under your consideration.

3. Mr Day informed the Court that he sought to clarify whether the appellant was seeking to discontinue the proceeding or merely seeking an adjournment.  He said, however, that since receiving the email he had been unable to contact the appellant by telephone as the appellant’s phone was switched off.  Early on 18 May 2016 Mr Day sent an email to the appellant asking him to clarify that issue but he did not receive a response.

4. The appellant did not appear when the matter was called on for hearing at 10:20 am today.  He has not contacted my chambers since then to explain or justify his non-appearance.

5. Rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) provides that if the appellant is absent when an appeal is called on for hearing the respondent may apply to the Court for an order that the appeal be dismissed. In reliance on that rule the first respondent sought orders dismissing the proceeding.

6. In my view such an order is appropriate and I have ordered that the appeal be dismissed under r 36.75 and that the appellant pay the first respondent’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: 

Dated:       18 May 2016