BAS21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1127

BAS21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1127

The appellant had been given ample notice at all known email addresses that non-appearance could lead to dismissal, had made no attempt to appear or communicate with the Court, and was outside Australia. The Court inferred that he had no wish to prosecute the appeal. Because his absence from Australia would likely require refusal of the protection visa if the matter returned to the Tribunal, the appeal was also likely futile. It was therefore appropriate, in the interests of the administration of justice, to dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

Jurisdiction
Australia
Judgment Date
21 September 2022
Procedural Posture
Migration Appeal From a Decision of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa (subclass 866) / Case Management Hearing; Appeal Dismissed for Non Appearance
Outcome
Appeal dismissed; appellant ordered to pay the first respondent's costs fixed at $2,000, with dismissal without prejudice to an application to reinstate the appeal on the basis that it was dismissed in his absence.
Legal Topics
['protection Visa Refusal' 'dismissal of Appeal for Failure to Attend' 'non Appearance by Appellant' 'futility of Appeal' 'costs']
['migration' 'administrative Law' 'federal Court Procedure'] ['protection Visa Refusal' 'dismissal of Appeal for Failure to Attend' 'non Appearance by Appellant' 'futility of Appeal' 'costs']

Case Brief

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Procedural Posture

Migration Appeal From a Decision of the Federal Circuit Court Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection (class Xa) Visa (subclass 866) / Case Management Hearing; Appeal Dismissed for Non Appearance

Legal Issues

  1. 1 ['Whether the appeal should be dismissed where the appellant did not appear at the case management hearing and had not communicated with the Court despite notice of possible dismissal.' 'Whether s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowered dismissal for failure to attend a hearing relating to the appeal.' "Whether the appellant's absence from Australia made the appeal likely futile because a criterion for the Protection (Class XA) visa (Subclass 866) was that the applicant be in Australia."]

Ratio Decidendi

The appellant had been given ample notice at all known email addresses that non-appearance could lead to dismissal, had made no attempt to appear or communicate with the Court, and was outside Australia. The Court inferred that he had no wish to prosecute the appeal. Because his absence from Australia would likely require refusal of the protection visa if the matter returned to the Tribunal, the appeal was also likely futile. It was therefore appropriate, in the interests of the administration of justice, to dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

Court Disposition

Appeal dismissed; appellant ordered to pay the first respondent's costs fixed at $2,000, with dismissal without prejudice to an application to reinstate the appeal on the basis that it was dismissed in his absence.

Orders

  • ["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." "The first respondent's name is amended to 'Minister for Immigration, Citizenship and Multicultural...