BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 448

BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 448

The appellant had proper notice of the programming orders, hearing date and hearing arrangements, but did not appear in person or by Microsoft Teams and had not filed submissions. His email and counsellor's letter did not provide probative medical evidence explaining why he could not participate in the hearing. Accordingly, no proper basis for an adjournment was established and it was appropriate to dismiss the appeal under r 36.75(1)(a)(i) for non-attendance and fix the first respondent's costs at $3,500.

Jurisdiction
Australia
Judgment Date
27 April 2022
Procedural Posture
Migration Appeal From a Federal Circuit Court Decision Refusing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Hearing of Appeal; Informal Adjournment Request and First Respondent's Request for Dismissal for Non Attendance
Outcome
Appeal dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth); appellant ordered to pay the first respondent's costs fixed at $3,500.
Legal Topics
['protection Visa Refusal' 'judicial Review' 'administrative Appeals Tribunal' 'non Appearance by Appellant' 'adjournment on Medical Grounds' 'dismissal of Appeal' 'costs']
['migration Law' 'administrative Law' 'federal Court Procedure'] ['protection Visa Refusal' 'judicial Review' 'administrative Appeals Tribunal' 'non Appearance by Appellant' 'adjournment on Medical Grounds' 'dismissal of Appeal' 'costs']

Case Brief

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Procedural Posture

Migration Appeal From a Federal Circuit Court Decision Refusing Judicial Review of an Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Hearing of Appeal; Informal Adjournment Request and First Respondent's Request for Dismissal for Non Attendance

Legal Issues

  1. 1 ["Whether the appeal should be adjourned on the basis of the appellant's asserted mental and physical condition." 'Whether the appeal should be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) because the appellant did not appear.' 'Whether costs should be fixed in favour of the first respondent.']

Ratio Decidendi

The appellant had proper notice of the programming orders, hearing date and hearing arrangements, but did not appear in person or by Microsoft Teams and had not filed submissions. His email and counsellor's letter did not provide probative medical evidence explaining why he could not participate in the hearing. Accordingly, no proper basis for an adjournment was established and it was appropriate to dismiss the appeal under r 36.75(1)(a)(i) for non-attendance and fix the first respondent's costs at $3,500.

Court Disposition

Appeal dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth); appellant ordered to pay the first respondent's costs fixed at $3,500.

Orders

  • ['Pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the appellant and counsel be permitted to deliver oral submissions by way of internet connection at the hearing.' 'The appeal is dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).' "The appellant pay the first...