CQR16 v Minister for Home Affairs

1. The appeal be dismissed pursuant to r 36.75(1) of the Federal Court Rules 2011 (Cth).
2. The appellant pay the first respondent's costs fixed in the sum of $5,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 This matter was first called on for hearing on 25 February 2019. On that date it was adjourned on the basis that the decision of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 might be relevant to the determination of the appeal in light of the fact that central to the proposed appeal was a certificate purportedly issued under s 473GB of the Migration Act 1958 (Cth). 2 The decision of the High Court in BVD17 has since been delivered and the matter was called on for hearing today. 3 When the matter was called outside Court this morning the appellant did not appear. A Court Officer has attempted to locate the appellant in the precinct of the Court but those attempts have been unsuccessful. 4 The appellant has not provided any written submissions in accordance with directions that were made for preparation of the appeal by the Registrar. Nor has he sought to file any submissions at any other time or responded to email communications from my Associate. 5 I am satisfied that the appellant has been notified by email from the Minister's solicitors of today's hearing. I have read the email, which enclosed a copy of supplementary submissions which dealt with the decision in BVD17 and also notified the appellant that the matter was listed for hearing today at 10.15 am before me at the Perth registry of the Federal Court. The email also informed the appellant that if he did not attend, the Minister would seek orders from the Court that the matter be dismissed and that the appellant pay the Minister's costs of the proceedings in a fixed amount. 6 In those circumstances, the Minister has sought that the Court exercise the power under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) that the appeal be dismissed because of the appellant's non-appearance. 7 In all of the circumstances, that appears to be the appropriate course, and orders will be made accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.