FEDERAL COURT OF AUSTRALIA

BZAEV v Minister for Immigration and Border Protection [2014] FCA 496

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

EX TEMPORE REASONS FOR JUDGMENT

1    The appeal will be dismissed on the ground that the appellant has failed to appear before the Court to prosecute her appeal.

2    In that context I wish to mention two things.

3    The first is this. On 21 March 2014, the Federal Court of Australia wrote a letter to the appellant and also to the solicitors for the first respondent advising the parties that the hearing of this appeal would take place on Monday, 12 May 2014. Unfortunately, in that letter the Court advised the parties that the hearing would take place at 10.15pm on 12 May 2014.

4    That letter was apt to be confusing for the obvious reason.

5    Accordingly, on 1 April 2014 a further letter was written by the Federal Court Registry to the appellant advising that the appeal would be heard and determined on 12 May 2014 at 10.15am.

6    The second is that the Court convened this morning at approximately 10.25am in order to allow some time for the appellant to appear. Upon the calling of the matter for hearing there was no appearance by the appellant. The matter was called outside the courtroom and there was no appearance by the appellant. On that footing, I am satisfied that the appellant was appropriately advised of the hearing date and has failed to appear to prosecute the appeal.

7    It is said that the appeal also ought to be dismissed on the footing that the appellant has failed to file any written submissions in accordance with the Court’s order. I am not minded to dismiss the matter on that footing because had the appellant appeared I would undoubtedly have entertained oral submissions from her with the assistance of an interpreter who has appeared to assist her in the appeal. Thus, I would not regard the failure to comply with the order as itself decisive of the question of whether the appeal should be dismissed.

8    However, I do regard the appellant’s failure to appear to prosecute the appeal as decisive of the outcome of the appeal.

9    I have also given leave to the first respondent to read and file an affidavit which seeks to explain that the appellant is out of the country. That may be, then, the explanation for the failure to prosecute the appeal, but, in any event, the appellant is not here to prosecute the appeal and the appeal must fall to be dismissed for non-appearance to prosecute the appeal.

Associate:

Dated:    12 May 2014