Abolail v Minister for Immigration and Border Protection [2017] FCA 606

FEDERAL COURT OF AUSTRALIA

Abolail v Minister for Immigration and Border Protection [2017] FCA 606 Appeal from: Abolail v Minister for Immigration and Border Protection [2016] FCCA 3363

File number: NSD 2235 of 2016

Judge: RARES J

Date of judgment: 23 May 2017

Legislation: Migration Act 1958 (Cth) s 501CA Federal Court Rules 2011 r 36.75

Cases cited: Abolail v Minister for Immigration and Border Protection [2016] FCCA 3363

Date of hearing: 23 May 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 11

Counsel for the Appellant: The Appellant did not appear

Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS NSD 2235 of 2016

BETWEEN: HUSSAM ABOLAIL Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: RARES J DATE OF ORDER: 23 MAY 2017

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to r 36.75(1)(a) of the Federal Court Rules 2011. 2. The appellant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT) RARES J: 1 On 21 December 2016 the Federal Circuit Court refused the appellant Constitutional writ relief from the decision of the Minister personally made on 4 August 2016 under s 501CA of the Migration Act 1958 (Cth) not to revoke the original decision to cancel the appellant's visa: Abolail v Minister for Immigration and Border Protection [2016] FCCA 3363. 2 The appellant filed a notice of appeal on 28 December 2016. The grounds of appeal asserted that the trial judge's decision was, first, unlawful and, secondly, unreasonable, without further particularisation. At the time, the appellant was at the Christmas Island Immigration Detention Centre. 3 In the meantime, on 22 December 2016, as explained in the affidavit of a solicitor for the Minister, Brooke Griffin, affirmed on 12 May 2017, the appellant completed a request for his removal from Australia form. He noted in the form that, if he had outstanding legal proceedings, he understood that, if he chose not to withdraw them, consideration of those claims could be dismissed by the courts once he was removed from Australia. After filing his notice of appeal, he signed a second request for removal form on 10 January 2017, which was in exactly the same form as the first. 4 As a consequence of his requests for removal, the appellant departed Australia on 9 February 2017 for Jordan, his country of origin. 5 On 16 March 2017, the solicitor for the Minister informed the appellant, by letter addressed to his email address stated on his notice of appeal, of the listing before me today and attached a copy of the Registrar's directions for the preparation of this appeal. 6 On 24 March 2017, the Minister's solicitor again sent the appellant at his given email address, a copy of the appeal papers, together with a letter that noted that should he, or any lawyer acting on his behalf, fail to appear today, the Minister might seek orders that the appeal be dismissed with costs without further notice. 7 On 10 May 2017, the Minister's solicitor again emailed the appellant reminding him of the hearing fixed for today, and the fact that he had been required to file and serve a written outline of his submissions by no later than the previous day, 9 May 2017. The email invited the appellant to respond, indicating whether he intended to file and serve a written outline of submissions or to participate in the hearing today. Ms Griffin said that there had been no response by the appellant to any of the earlier emails noted above. 8 Mr Markus, who appeared today for the Minister, informed me that there had been no response to the email of 10 May 2017. 9 When the matter was called on for hearing this morning outside the Court, the appellant did not appear. The appellant has made no communication himself directly with the Court. 10 In the circumstances, it seems to me that this is a case where, having regard to all of the circumstances, I should exercise the power under r 36.75(1)(a) of the Federal Court Rules 2011 to dismiss the appeal summarily for the non-appearance of the appellant. 11 I will order that the appeal be dismissed pursuant to r 36.75(1)(a) and that the appellant pay the Minister's costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.