Federal Court Dismisses Appeal Due to Non-Appearance

OUTCOME: Dismissed

Federal Court of Australia

AGV20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1430 Appeal from: AGV20 v Minister for Immigration & Anor [2020] FCCA 2980

File number(s): NSD 1241 of 2020

Judgment of: CHEESEMAN J

Date of judgment: 16 November 2023

Catchwords: MIGRATION – application for leave to appeal from interlocutory decision of the then Federal Circuit Court of Australia – where applicant did not appear – Held: application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) r 35.33

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 8

Date of hearing: 16 November 2023

Counsel for the Applicant: [redacted]

Solicitor for the First Respondent Ms [COUNSEL] of [NAME]

Solicitor for [RESPONDENT] Respondent: [redacted]

ORDERS NSD 1241 of 2020

BETWEEN: [APPELLANT]20 Applicant

AND: [APPELLANT] FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

order made by: [RESPONDENT] J DATE OF ORDER: 16 November 2023

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent's costs of this application.

3. The first respondent is to provide a copy of these orders and the reasons for judgment to the applicant, using the means of communication which are known to the first respondent.

4. The first respondent's name be amended to Minister for Immigration, Citizenship and Multicultural Affairs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Ex tempore (Revised from transcript)

CHEESEMAN J 1 In this proceeding, the applicant applies for leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) from an interlocutory judgment of the Federal Circuit Court of Australia, now the Federal Circuit and Family Court, in which the applicant's application for judicial review of the decision of the Administrative Appeals Tribunal was summarily dismissed. 2 The application for leave to appeal to this Court was filed on 13 November 2020. On 10 December 2020, orders were made for the conduct of the proceedings. The directions were communicated to the applicant in the first instance by the Registry of the Court and also, most recently, by the solicitors for the first respondent, the Minister. 3 The Registry sent further communications to the applicant concerning the listing of the matter for hearing and the details of today's hearing. Those emails began with an email sent by staff of the Court to the applicant, copied to the Minister's solicitors on 1 August 2023. That email was in response to an email received from the applicant on 31 July 2023. The email from the applicant confirmed that the applicant was available for the matter to be listed for hearing in the period from 6 to 28 November 2023. Following the exchange of emails with the applicant, in August 2023, the Court emailed the applicant and the Minister's representatives again on 27 September 2023, confirming the arrangements for the hearing of the leave to appeal application before the Court today. 4 A further copy of that correspondence was provided to the applicant by the Minister's solicitors by letter dated 28 September 2023. Included in that letter was a clear statement to the effect that if the applicant did not appear at the hearing, the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions under the Federal Court Rules 2011 (Cth) with costs. 5 The applicant has not filed any outline of written submissions in support of this application, notwithstanding that orders were made to allow for that to occur. Given that the application was listed for hearing today and the applicant has not appeared, the matter was called three times outside the Court. After a short adjournment, at the Minister's solicitors' request, the matter was resumed and called outside the Court again. 6 The applicant has not appeared and has sent no communication to the Court explaining their non-appearance. The Minister moves the Court for the application for leave to appeal to be dismissed pursuant to r 35.33(1)(a)(i) of the Rules. In the circumstances which I have outlined, it is appropriate for that order to be made, and for an order that the applicant pay the Minister's costs. I will further order that the Minister notifies the applicant of the orders made today and provides a copy of these reasons to the applicant. 7 I note that in the event there is an explanation presently unknown to the court as to why the applicant has not appeared today, there is an opportunity for them to apply under subsection (2) of r 35.33 of the Rules. 8 Accordingly, I will make orders as I have indicated. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Associate: Dated: 16 November 2023