FEDERAL COURT OF AUSTRALIA

BQM17 v Minister for Immigration and Multicultural Affairs [2025] FCA 302

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.

2.    The appeal is dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

PERRY J:

1    The appellant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival in 2012.

2    On 23 December 2020, the appellant filed this appeal against a judgment of the then Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision made by the second respondent, the Immigration Assessment Authority (IAA). By that decision, the IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs, refusing the appellant a Temporary Protection (subclass 785) visa (temporary protection visa).

3    The appellant was represented by counsel before the primary judge.

4    The Notice of Appeal in this Court advances one ground of appeal, namely:

The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), in dealing with the [appellant’s] claim concerning fear of harm from the AAH, did not address or deal with this integer of the [appellant’s] claims in relation to the visits by the AAH members to the [appellant’s] family home, the primary judge at (31) considered that the [IAA’s] conclusion about this matter was of sufficient generality that a separate discussion of the visits would have been otiose, the primary judge erred in this regard as reliance of the lapse of time since these visits occurred doesn’t address the [appellant’s] compliant because the militia members knew that the [appellant] has left Iraq to the overseas, hence, there is no need for them to visit the [appellant’s] house anymore, not discussing the visits and its impacts on the [appellant] was made in error.

(Errors in the original.)

5    No notice of address for service has been filed by a legal representative for the appellant and as such, it appears he has not engaged legal representation on the appeal. The appellant did not file any written submissions in advance of the appeal in accordance with orders made by the Registrar, as I shortly explain.

6    In circumstances where the appellant did not appear at the hearing today, the Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) for non-appearance and made brief oral submissions in support of that application. In addition, the solicitor for the Minister gave brief evidence which I explain below.

7    Rule 36.75(1)(a) provides:

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

(ii)    the hearing be adjourned; or

(iii)    the hearing proceed only if specified steps are taken;

…

8    I agree that the appeal should be dismissed under rule 36.75(1)(a)(i) by reason of the appellant’s failure to attend when the appeal was called on today in the circumstances which I explain below and having regard to the following considerations.

(1)    The National Migration Team of the Federal Court of Australia wrote to the parties by email on 16 December 2024 advising that the appeal was listed for hearing on Thursday 27 March 2025 at 10:15am (AEDT) at the Law Courts Building, Queens Square, 184 Phillip Street, Sydney for half a day. The email also advised that the courtroom allocated for the matter would be displayed on a noticeboard at the Federal Court on the day of the hearing, or would be available on the daily court list from late in the afternoon the day before the hearing, and stated:

Please note that orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend Court at the specified time.

The email address to which the email from the Migration Team was addressed is the same as the email address provided by the appellant in his Notice of Appeal (the appellant’s email address).

(2)    The appeal book had earlier been served by the Minister upon the appellant by email on 8 June 2021 to the appellant’s email address.

(3)    The Minister’s outline of submissions was served on the appellant by email on 7 March 2025, under cover of an email which was tendered by the Minister. That email also advised that:

This matter has been listed for hearing on 27 March 2025 at 10:15am (AEDT) in person before Justice Perry.

Please note that you are required to attend the scheduled hearing and, if there is no appearance by you or on your behalf, then the first respondent may seek orders that your application be dismissed with costs.

(Emphasis in bold and italics added.)

(4)    The appellant did not file any written submissions in support of his appeal despite orders by the Registrar made on 7 January 2021, as amended by orders made on 28 February 2025, providing that the appellant was to file and serve a written outline of submissions on or before 17 March 2025, after the Minister’s submissions.

(5)    On 26 March 2025, the Minister’s solicitors wrote to the appellant’s email address in the following terms:

We are writing to remind you that this matter is listed for a final Hearing before Justice Perry on 27 March 2025 at 2.15 pm (Sydney time). The hearing will be held at the Federal Court, Queens Square, 184 Phillip Street, Sydney, NSW 2000.

Please note that you are required to attend the hearing and, if you do not appear when the matter is called, the Minister may seek orders that your application be dismissed with costs.

(Emphasis in bold and italics added.)

As the Minister’s counsel pointed out, the time notified in that email was incorrect. As a result, on 27 March 2025 at 9:36am, a further email was sent to the appellant’s email address, stating that:

Further to the below email we note that the hearing is on at 10:15am today.

Please disregard the time in the email below.

The reference to “the email below” was a reference to the email advising of the incorrect time.

(6)    When the appeal was called on at approximately 10.25am on 27 March 2025, the Court Officer called the matter outside the courtroom three times but there was no appearance by the appellant. Counsel for the Minister advised that the email on 26 March 2025 had referred to the incorrect time and that this provided a possible explanation for the appellant's non-attendance at 10.15am. Nonetheless, at approximately 10.30am after the matter had been stood down, the solicitor for the Minister rang the mobile number given by the appellant as his contact number in his Notice of Appeal, and upon doing so, heard a message that the number had been disconnected. I also note the evidence of the solicitor for the Minister that she had endeavoured to call the appellant prior to the commencement of the hearing and had also been unable to contact him. As a result, the Minister’s solicitor then telephoned the Department, which confirmed that the telephone number appearing on the Notice of Appeal which she had attempted to call was the most up-to-date telephone number that the Department had on file. When the Court resumed briefly, it was decided that the matter should be adjourned until 2.15pm in case the appellant had been misled as to the time of the appeal.

(7)    The matter was called on again at approximately 2:30pm on 27 March 2025, with the Court Officer again calling the matter three times outside the Court. There was no attendance by the appellant. As I was sitting on another matter at that time, it was agreed with the Minister’s counsel to defer the hearing to a time not before 3:30pm, when the matter was again called on a little after 3:30pm. There was, again, no appearance for the appellant, despite the matter being called outside the Court three times for the third time.

9    Finally, I have had regard to the entitlement of the appellant to apply under rule 36.75(2) to set aside the order made today dismissing his appeal. Whether or not any such application would succeed would depend upon an exercise of discretion. I note that relevant considerations to the exercise of that discretion include whether there is an acceptable explanation for the appellant’s failure to attend the hearing today and the strength of his case on the appeal if the order dismissing the appeal were to be set aside.

10    For these reasons, the application should be dismissed under rule 36.75(1)(a)(i) with the appellant to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    1 April 2025