FEDERAL COURT OF AUSTRALIA
MZZWL v Minister for Immigration and Border Protection [2015] FCA 73
Citation: MZZWL v Minister for Immigration and Border Protection [2015] FCA 73 Appeal from: MZZWL v Minister for Immigration & Anor [2014] FCCA 1987 Parties: MZZWL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 535 of 2014 Judge: BROMBERG J Date of judgment: 11 February 2015 Catchwords: PRACTICE AND PROCEDURE – dismissal of appeal for want of appearance by appellant. Legislation: Federal Court of Australia Act1976 (Cth) s 25(2B)(bb)(ii) Cases cited: Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 Date of hearing: 11 February 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 535 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZWL
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
11 FEBRUARY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 535 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZWL
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
11 FEBRUARY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 27 August 2012, the appellant lodged an application for a Protection (Class XA) visa. The appellant’s application was rejected on 28 February 2013 by a delegate of the first respondent and that decision was affirmed on 31 October 2013 by the Refugee Review Tribunal. The appellant sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. The subject of this appeal is the Federal Circuit Court’s dismissal on 26 August 2014 of the appellant’s application for judicial review.
As far as the Court is aware, the appellant is not legally represented. The 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 stood the matter down briefly so that attempts could be made to contact the appellant, but those attempts were unsuccessful. I am satisfied that the appellant has been made aware of the hearing date for the appeal.
As 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 a power given to the Court by s 25(2B)(bb)(ii) of the Federal Court of Australia Act1976 (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.
The first respondent submits that I should dismiss the appeal for the failure of the appellant to attend the hearing. I accept that that is the appropriate course. In particular, for the reasons given at paragraphs [11] to [13] of Al Mamun, 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 appellant’s failure to attend the hearing.
Accordingly, I will make an order dismissing the appeal and a further order 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 Bromberg. Associate:
Dated: 12 February 2015
- AGLC
- MZZWL v Minister for Immigration and Border Protection [2015] FCA 73
- Case
- [2015] FCA 73
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appeal could proceed in the absence of the appellant. The court was required to determine if the failure to appear constituted a sufficient ground for dismissing the appeal, and if so, whether an order for costs against the appellant was appropriate under the circumstances. The court considered the procedural rules and relevant case law to address these questions.
The court found that the appellant's non-appearance at the hearing justified the dismissal of the appeal. The Federal Court Rules 2011 provide that an appeal may be dismissed if the appellant fails to appear without sufficient cause. The court noted that the appellant had been given multiple opportunities to explain their absence but had not provided any satisfactory explanation. The court also held that an order for costs was warranted, as the respondent had incurred unnecessary expenses due to the appellant's failure to appear. The court made an order that the appeal be dismissed and that the appellant pay the costs of the first respondent.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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