AZAFN v Minister for Immigration and Border Protection

1. The appeal be dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011.
2. The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This appeal was listed for hearing this morning at 10.15 am Sydney time to proceed by way of video conference. The appellant and respondent are located in Adelaide and these proceedings bear a proceeding number emanating from the Adelaide Registry of this Court. When the proceedings were called on for hearing at 10.15 am Sydney time there was no appearance by the appellant in Adelaide. The matter was called outside the Adelaide courtroom three times and the appellant did not appear. 2 Given the time difference between Sydney and Adelaide of half an hour I adjourned the proceedings to allow contact to be made with counsel for the respondent's instructing solicitor, who was not present in Court, and to give the appellant time to reach court in the event that there had been some confusion about the time. I was informed, through the court officer, that the respondent's solicitor had, in fact, thought that the time for hearing was 10.15 am Adelaide time, not 10.15 am Sydney time. In those circumstances I determined not to hear the matter before 10.20 am Adelaide time. When the matter came on at 10.20 am Adelaide time (10.50 am Sydney time) there was no appearance by or on behalf of the appellant. I once again asked that the matter be called outside the courtroom in Adelaide. The appellant did not appear. 3 In the absence of an appearance by the appellant, counsel for the first respondent seeks an order, pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011, that in the absence of the appellant the appeal be dismissed. Counsel for the first respondent also submits that the appeal is, in any event, without merit and ought to be dismissed on that basis. 4 I propose to make an order dismissing the appeal, in the absence of the appellant, pursuant to rule 36.75(1)(a)(i). In addition, I note that, having reviewed the decision of the Tribunal, the decision of the primary judge and the submissions filed with the Court by the first respondent, I accept the submission made by counsel for the first respondent that the appeal is without merit. I have formed that view in the absence of the appellant and without the benefit of any submissions made by or on behalf of the appellant. That being said, given the nature of the matter, which involves whether the tribunal had jurisdiction to hear the application for review filed by the appellant, I am of the view that it is extremely unlikely that the appellant could succeed on this appeal. 5 In the circumstances I make the following orders: (1) The appeal be dismissed pursuant to rule 36.75(1)(a)(i) of the Federal Court Rules 2011. (2) The appellant pay the first respondent's costs as agreed or taxed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.