BKS16 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 In this proceeding, the Appellant appeals from a decision of a judge of the Federal Circuit Court dated 4 December 2018 and published as BKS16 v Minister for Immigration & Anor [2018] FCCA 3602. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the 'Tribunal') to affirm a decision of a delegate of the First Respondent (the 'Minister') not to grant a protection visa (the 'visa') to the Appellant pursuant to s 65 of the Migration Act 1958 (Cth) (the 'Act'). 2 The background to this matter is set out at [5]-[16] of the primary judge's reasons. 3 Relevantly, and in short summary, the Minister refused the Appellant's visa application on the basis that the Appellant was not fearful of returning to his home country of India as he had claimed. After applying to the Tribunal for merits review and confirming he would appear at the scheduled hearing, the Appellant sought a postponement of the Tribunal hearing two days before the scheduled date. The Tribunal refused to grant the postponement and advised the Appellant of the consequences of non-appearance, but the Appellant nevertheless failed to appear and the Tribunal proceeded to make its decision without taking any further action to enable the Appellant to appear before it pursuant to s 426A of the Act. The Tribunal ultimately affirmed the Minister's earlier decision finding that, on the 'very limited' evidence before it and having regard to the Appellant's failure to attend the hearing before the Tribunal to explain his claims, the Tribunal was not satisfied that he had a well-founded fear of persecution or was a person in respect of whom Australia has protection obligations under ss 36(2)(a) and (aa) of the Act. 4 In his application for judicial review before the Federal Circuit Court, the Appellant relied on one unparticularised ground of appeal to the effect that the Tribunal had erred in applying the correct criteria for the visa under s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth). The primary judge concluded that, because the ground was not particularised, it was 'impossible to tell on what basis the [Appellant] claimed the existence of jurisdictional error', but that in any case, his Honour detected no jurisdictional error in the Tribunal's reasons. 5 Before this Court, the Appellant pleads twelve grounds of appeal, none of which were raised before the primary judge. For the reasons set out in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [30]-[32] (citing SZKMS v Minister for Immigration and Citizenship [2008] FCA 499), it is undesirable to permit an appellant to raise for the first time on appeal new grounds for reviewing a tribunal's decision. However, as events have transpired, I do not need to consider the twelve grounds of appeal (even assuming they could be raised before this Court at this time). 6 The Appellant has failed to attend the hearing of this appeal and I am satisfied that the Appellant has had sufficient notice of the time and place of this hearing. No explanation has been given for the Appellant's failure to attend. 7 Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), I exercise the Court's discretion to dismiss the appeal. I will order that the appeal be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.