Federal Court of Australia
FBD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 445
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUBAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2. Pursuant to rr 35.32 and 35.33(1)(a) of the Federal Court Rules 2011, the proceeding be dismissed with costs to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
STEWART J:
1 This is an application for leave to appeal from a judgment of the Federal Circuit of Australia, as that Court was then styled. The Circuit Court dismissed an application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision of a delegate of the relevant Minister not to grant the applicant a protection visa. The dismissal was made under r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The dismissal was following a show cause hearing on the basis that the Circuit Court was not satisfied that the application raised an arguable case for the relief claimed. Under r 44.12(2) of the Federal Circuit Court Rules 2011, such a dismissal is interlocutory. For that reason, with reference to s 24(1A) of the Federal Court of Australia Act 1976, leave to appeal is required.
2 The application for leave to appeal and supporting documents were filed on 5 August 2020. As required, the applicant provided an email address and a physical address as his address for service. On 20 August 2020, the Minister for Immigration, Citizenship and Multicultural Affairs and the Tribunal, as first and second respondents respectively, filed addresses for service, the latter being in the form of a submitting notice.
3 The matter was then held in abeyance, as I understand, because of the COVID-19 pandemic which did not allow hearings in person for some time, and because the applicant was self-represented, making an online hearing more difficult than might otherwise be the case. In any event, on 20 March 2023, the Court’s Registry contacted the parties by email asking for their available dates for a hearing, but the applicant did not respond. Evidence from the Registry states that the applicant also failed to respond to prior communications.
4 The Minister has tendered evidence of the Department of Home Affairs’ records showing that the applicant departed from Australia on 20 December 2020 on a flight to Dubai and has not returned to Australia since then. The Department’s records show that the applicant is offshore and holds no visa entitling him to return to Australia.
5 On 24 April 2023, my Associate emailed the parties at their given email addresses, notifying them that the matter was listed for case management at 9.30am this morning, being 5 May 2023. No response was received from the applicant. The notice also provided a Microsoft Teams link for remote appearance by the applicant.
6 On 26 April 2023, orders were entered which listed the matter for a case management hearing at 9.30am this morning. A copy of those orders was served on the applicant by a National Judicial Registrar of the Court by express post at the applicant’s last-known physical address. The Australia Post tracking document shows that service was effected at that address on 27 April 2023.
7 The applicant’s given name and pseudonym were called outside Court on the matter being called this morning. He has not appeared. He has also not appeared on the Microsoft Teams link which is ready and available for his use.
8 In the circumstances, I am satisfied of the following.
9 First, the applicant has had adequate notice of the hearing at his nominated addresses, being physical and email, for service. If he does not check those addresses, that is his look out.
10 Secondly, the applicant has shown no interest in or commitment to progressing this matter since it was commenced in August 2020, shortly before he left the country.
11 Thirdly, the applicant has failed to attend a hearing relating to the application within the meaning of r 35.32(c) of the Federal Court Rules 2011.
12 Fourthly, the applicant is in default of appearance today within the meaning of r 35.33(1), noting that “hearing” is defined to include any hearing before the Court.
13 In the exercise of the powers under rr 35.32 and 35.33(1)(a), I therefore dismiss the application with costs. The Minister asked that those be “as taxed or agreed” which I accede to, although the possibility of the costs being agreed in the circumstances outlined above appears remote at best.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
Associate:
