FEDERAL COURT OF AUSTRALIA BTU15 v Minister for Immigration and Border Protection [2017] FCA 839 Appeal from: Application for leave to appeal: BTU15 v Minister for Immigration [2016] FCCA 3098 File number(s): NSD 2151 of 2016 Judge(s): FARRELL J Date of judgment: 24 July 2017 Catchwords: MIGRATION – application for leave to appeal decision of Federal Circuit Court of Australia – where applicant did not attend – application by respondent to dismiss application for leave to appeal – application for leave to appeal dismissed Legislation: Migration Act 1958 (Cth) s 476 Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court Rules 2011 (Cth) rr 35.12, 35.33 Cases cited: BTU15 v Minister for Immigration [2016] FCCA 3098 Date of hearing: 24 July 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Ms B Griffin of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS NSD 2151 of 2016 BETWEEN: BTU15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 24 July 2017 THE COURT ORDERS THAT: 1. The application for leave to appeal is dismissed pursuant to r 35.33(1)(a) of the Federal Court Rules 2011 (Cth). 2. The applicant must pay the first respondent's costs as agreed or taxed. THE COURT NOTES THAT: Rule 35.33(2) provides that if a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who is absent may apply to the Court for an order: (a) setting aside or varying the order; and (b) for the further conduct of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FARRELL J: 1 The applicant seeks leave to appeal from the judgment delivered and orders made by a Judge of the Federal Circuit Court of Australia (FCC) delivered on 2 December 2016: see BTU15 v Minister for Immigration [2016] FCCA 3098 (BTU15 v MIPB). Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the primary judge dismissed an application pursuant to s 476 of the Migration Act 1958 (Cth) for review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa. 2 The primary judge's decision is interlocutory and accordingly leave to appeal is required: see r 44.12(2) of the FCC Rules. 3 On 21 June 2017, the Court's Registry advised the solicitors for the Minister and the applicant that the application would be heard today at 2.15 pm. I am advised that the Minister's solicitor replied to all recipients confirming the Minister's availability. The email address used for the applicant is that advised by the applicant on his application filed on 14 December 2016 and his supporting affidavit of the same date. 4 At the time appointed for the hearing, the applicant did not appear. The court officer was asked to call the matter outside the courtroom and to make enquiries of the Court's Registry concerning whether the applicant had appeared. The Minister's representative was requested to contact the applicant on the mobile telephone number included on the pleadings filed by the applicant. The interpreter who had attended Court to assist the applicant was asked to assist the Minister's legal representative in making the call. The Court was adjourned until 2.30 pm. 5 The Court reconvened at 2.38 pm. The court officer advised that she received no response and the applicant was not at the Court's Registry. The Minister's representative advised the Court that two attempts were made to speak to the applicant on the mobile telephone number, but each time it rang out. 6 The Minister's representative applied to the Court to have the matter dismissed under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth). That rule relevantly provides that if the applicant is absent when an application under r 35.12 (leave to appeal) is called on for hearing, any other party may apply to the Court for an order that the application be dismissed. 7 In all of the circumstances, the Court determined that it was appropriate that the order be made and that the applicant be ordered to pay the Minister's costs as agreed or taxed. 8 The Court notes that under r 35.33(2), if a hearing proceeds in a party's absence and the Court makes an order, the party who was absent may apply to the Court for an order setting aside or varying the order that was made and for the further conduct of the proceeding. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 24 July 2017