BAS21 v Minister for Immigration, Citizenship and Multicultural Affairs

1. For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel for the first respondent is permitted to deliver oral submissions by way of video link.
2. The first respondent's name is amended to 'Minister for Immigration, Citizenship and Multicultural Affairs'.
3. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the appeal is dismissed.
4. The preceding order is made without prejudice to the ability of the appellant to apply to reinstate the appeal on the basis that it was dismissed in his absence.
5. The appellant must pay the first respondent's costs of the appeal fixed in the amount of $2,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal dated 24 March 2021. The Tribunal affirmed a decision made by a delegate of the Minister to refuse to grant to the appellant a Protection (Class XA) visa (Subclass 866) for which the appellant had applied. 2 The appeal was commenced by a notice of appeal filed on 27 August 2021, however due to circumstances arising out of the COVID-19 pandemic there has been some delay in setting it down for hearing. The hearing today was convened as a case management hearing to make orders for the further conduct of the proceeding. However, in circumstances which I will explain in a little more detail shortly, there has been no appearance by or on behalf of the appellant. The first respondent (Minister) moves for the dismissal of the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), alternatively s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). 3 The ground of the application appears from the history of the matter which I will now recount. It is based on an affidavit of Grace Marie Mickle dated 10 June 2022 which is read into evidence, along with an email dated 5 July 2022 from the Minister's solicitors to the email address shown on the footer of the notice of appeal which was received into evidence, as well as the Court's own knowledge of its attempts to communicate with the appellant. 4 At the time that the appeal was accepted for filing, the Court sent an email to the appellant advising him that the appeal had been accepted for filing. On that occasion the Court used, not the email address shown on the footer of the notice of appeal (1st email address), but a different email address which was used by the appellant in the course of the Federal Circuit Court proceedings (2nd email address). On 31 August 2021, the Court's registry emailed the parties using a slightly different email address for the appellant which appeared in a different part of the notice of appeal (3rd email address). 5 On 31 August 2021, the Court's registry sent an email to the parties seeking further information relating to the conduct of the proceeding. That email was addressed to the 3rd email address. However, that email resulted in a bounce-back, suggesting that it is incorrect. It is close to the 2nd email address used for the Federal Circuit Court proceedings, which has not produced a bounce-back, and from which it can be inferred that at least use of the 2nd email address results in emails being received. 6 Ms Mickle's affidavit of 10 June 2022 contains evidence that the appellant left Australia on 30 April 2022 and had not since then returned. 7 On 8 August 2022, the Court contacted the parties again using the 1st email address, being the appellant's address for service, to seek available dates for hearing. The Minister responded to that email, but the appellant did not. 8 The proceeding was allocated to me on 30 August 2022, and shortly after that on 2 September 2022 my Chambers sent an email to the parties as to the listing of the first case management hearing. That email was sent to all three email addresses. It informed the appellant that if he did not appear at the case management hearing listed for today, it may be open to the Minister to apply for the entire appeal to be dismissed because of non-appearance. 9 On 15 September 2022, my Chambers sent another email about the case management hearing to the parties, including all three of the appellant's email addresses, which once again said that if the appellant did not appear at the case management hearing listed for today, that may result in the appeal being dismissed in his absence. 10 A similar email was sent yesterday, on 20 September 2022, which included details as to how to join the hearing which was to be convened by way of videoconference. Once again, it was sent to all three email addresses and that email informed the appellant that if he did not attend the hearing, that may result in the appeal being dismissed in his absence. The appellant has not acknowledged or replied to any of the emails sent from the Court which I have described or otherwise sought to communicate with the Court. 11 At the commencement of the hearing today, the appellant had made no attempt to join the appeal by means of that video link. I directed the court officer to attempt to contact him by telephone, which she did using, first, a telephone number shown on the notice of appeal and then secondly, a different telephone number shown in the records of the Department which were in evidence. The first number was answered, and with the assistance of the interpreter who was present at the hearing, the court officer established that the person at the other end of the line was not the appellant and disavowed having any appeal on foot in front of the Court. The second number rang out. 12 On the basis of all of the above matters, including the appellant's absence from Australia, I infer that the appellant has no wish to prosecute the present appeal. He has been given ample notice of the potential consequences for him if he did not appear at today's hearing. That notice has been given both by the solicitors for the Minister, in the email of 5 July 2022 that has been mentioned (which was sent to the 1st email address) and emails from the Court sent to all known email addresses. Yet the appellant has made no attempt to appear. 13 An additional matter which is relevant to the exercise of the discretion to dismiss the appeal is that the appellant's absence from Australia, assuming it continues, is likely to make any order that the Court might hypothetically make in the appeal futile. As I have noted, the visa for which the appellant applied is a protection visa. That is the visa which the delegate refused to grant and which was the subject of the Tribunal's decision, from which the appellant sought judicial review to the Federal Circuit Court. One of the criteria for the grant of a visa of that kind is that the visa applicant must be in Australia: Migration Regulations 1994 (Cth) Schedule 2 cl 866.411. What follows from this is that if the appeal were to be successful, and were to result in the setting aside of the order of the Federal Circuit Court, the matter would return to the Tribunal in circumstances where the appellant is not in Australia. It is well established that the Tribunal will essentially be making the decision in the shoes of the delegate of the Minister, but making that decision on the basis of the circumstances as they subsist at the time of the Tribunal's decision: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [14]-[15] (Kiefel CJ, Keane and Nettle JJ). Given that there seems to be little or no prospect that the appellant will be in Australia at the time, the Tribunal would be bound to refuse the visa in any event, regardless of the merits or otherwise of the appellant's protection claims. So there is an element of futility in this appeal. 14 For all those reasons, I consider that it is an appropriate exercise of the Court's discretion in the interests of the administration of justice to dismiss the appeal. It appears to me that r 36.75 is adapted to the final hearing of the appeal rather than a case management hearing, which is suggested by the distinction implicit between a circumstance where 'an appeal is called on for hearing', that being the circumstance referred to in r 36.75(1), and the circumstance referred to in r 36.74(1)(c), which is failure to attend a 'hearing relating to the appeal'. 15 But as I have noted the Minister also relies on s 25(2B)(bb)(ii), which does empower the Court to dismiss an appeal for failure by the appellant to attend a hearing relating to the appeal. In my view, that provision of the Federal Court Act does provide a basis for the Court to exercise a discretion to dismiss the appeal in the interests of the administration of justice. Given that the appellant appears to have no intention of prosecuting the appeal and has made no attempt to do so in the history that I have recounted above, and given also the futility of the appeal which I have noted, it is appropriate to exercise that discretion in this case. 16 However, it is common in instances where a proceeding, including an appeal, is dismissed in the absence of the party prosecuting it to provide in the Federal Court Rules or otherwise for the ability of that party to seek reinstatement of the appeal. For the avoidance of doubt I will make provision for any reinstatement application in the orders I make. 17 The Minister seeks costs fixed in the sum of $2,000, which is a reasonable and appropriate amount in a matter such as this. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.