BJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 792

BJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 792

The Court dismissed the appeal because the appellant had repeatedly failed to communicate with the Court or the Minister's representatives, had not attended two case management hearings despite numerous attempts to notify him by email, post and telephone, and could be inferred not to intend to pursue the appeal. The Court dispensed with service of the dismissal application under r 36.74(2) because the appellant had been notified of the possible dismissal application by Court and Minister correspondence, but granted liberty to apply within 14 days because there might be a bona fide reason for the appellant's non-attendance.

Jurisdiction
Australia
Judgment Date
07 July 2022
Procedural Posture
Migration Appeal From Orders of the Federal Circuit Court of Australia Affirming a Decision of the Immigration Assessment Authority to Affirm a Delegate's Refusal to Grant a Protection Visa / Application by the First Respondent at Case Management Hearing to Dismiss the Appeal for Failure to Appear and Failure to Prosecute
Outcome
Appeal dismissed with costs, subject to liberty to apply within 14 days to vary or set aside the dismissal order for good cause.
Legal Topics
['protection Visa' 'immigration Assessment Authority' 'dismissal of Appeal for Non Appearance' 'failure to Prosecute Appeal' 'service by Email' 'dispensing With Service' 'costs']
['migration' 'administrative and Constitutional Law and Human Rights' 'practice and Procedure'] ['protection Visa' 'immigration Assessment Authority' 'dismissal of Appeal for Non Appearance' 'failure to Prosecute Appeal' 'service by Email' 'dispensing With Service' 'costs']

Case Brief

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit Court of Australia Affirming a Decision of the Immigration Assessment Authority to Affirm a Delegate's Refusal to Grant a Protection Visa / Application by the First Respondent at Case Management Hearing to Dismiss the Appeal for Failure to Appear and Failure to Prosecute

Legal Issues

  1. 1 ['Whether the appeal should be dismissed under rr 36.74(1)(c) and 36.74(1)(d) of the Federal Court Rules 2011 (Cth) because the appellant failed to attend hearings relating to the appeal and failed to prosecute the appeal.' 'Whether the Court should dispense with the requirement under r 36.74(2) that the dismissal application be served on the appellant.' 'Whether costs should be ordered in favour of the first respondent.']

Ratio Decidendi

The Court dismissed the appeal because the appellant had repeatedly failed to communicate with the Court or the Minister's representatives, had not attended two case management hearings despite numerous attempts to notify him by email, post and telephone, and could be inferred not to intend to pursue the appeal. The Court dispensed with service of the dismissal application under r 36.74(2) because the appellant had been notified of the possible dismissal application by Court and Minister correspondence, but granted liberty to apply within 14 days because there might be a bona fide reason for the appellant's non-attendance.

Court Disposition

Appeal dismissed with costs, subject to liberty to apply within 14 days to vary or set aside the dismissal order for good cause.

Orders

  • ['Subject to order 3, the appeal be dismissed with costs.' 'The first respondent forthwith serve a copy of these orders on the appellant: (a) by email; and (b) physically; at the addresses recorded on the notice of appeal filed on 22 October 2019.' 'The appellant has liberty to apply, within 14 days of these orders...