Federal Court of Australia CWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1425 Appeal from: CWO19 & Ors v Minister for Immigration & Anor [2020] FCCA 2065 File number(s): NSD 1030 of 2020 Judgment of: BURLEY J Date of judgment: 17 November 2023 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia dismissing an application for judicial review of Administrative Appeals Tribunal decision affirming the decision of a delegate of the Minister to refuse to grant the appellants protection visas – appeal dismissed. Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) rr 36.75, 36.75(1)(a), 36.75(2) Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 (including supplementary reasons) Date of last submission/s: 15 November 2023 Date of hearing: 9 November 2023 Counsel for the Appellants: The Appellants did not appear Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS NSD 1030 of 2020 BETWEEN: CWO19 First Appellant CWP19 Second Appellant CWQ19 (and another named in the Schedule) Third Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: BURLEY J DATE OF ORDER: 17 NOVEMBER 2023 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first and second appellants pay the first respondent's costs of the appeal up to and including any costs incurred on 8 November 2023 and including the costs of preparation for the hearing. 3. The name of the first respondent be changed to "Minister for Immigration, Citizenship and Multicultural Affairs". 4. The first respondent serve a copy of these reasons on the appellants forthwith upon receiving them. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SUPPLEMENTARY REASONS FOR JUDGMENT BURLEY J: 1 On 9 November 2023, I delivered an ex tempore judgment (a revised version of which is below) and made orders dismissing these proceedings with costs, pursuant to rule 36.75(1)(a) of the Federal Court Rules 2011 (Cth) (FCR). Following the hearing, I was notified that the appellants had lodged a Notice of Discontinuance at around midday on 8 November 2023. No notice of that lodgement was provided by the Registry to my chambers. Nor was a copy of it sent by the appellants to the representatives of the first respondent. 2 Upon receiving a copy of the Notice of Discontinuance of the appeal, I invited the first respondent to make submissions as to whether the costs order should be modified to accommodate the fact that the Notice had been lodged on the day prior to the hearing, which he has done. The first respondent accepts that the costs order should be varied such that the first and second appellants pay the first respondent's costs up to and including 8 November 2023, but not the costs of the hearing. 3 The Court has power to vary an order before it has been entered (as is the case here) pursuant to FCR 39.04. 4 An appellant may discontinue an appeal by filing a Notice of Discontinuance without the Court's leave, at any time before the hearing of the appeal. Such notice has the effect of an order of the Court dismissing the appeal; FCR 36.73(2). The respondents' costs of the appeal so discontinued must be paid by the appellant; FCR 36.73(4). 5 In the circumstances outlined above, in my view it is appropriate for the first and second appellants (who are the adult appellants) to pay the first respondent's costs of the appeal up to and including any costs incurred on 8 November 2023 and including the costs of preparation for the hearing. The appellants could have saved the parties, and the court, time and effort had they communicated their intentions earlier, or communicated them directly to the first respondent or my chambers. Nevertheless, having regard to the prior-lodged Notice of Discontinuance, it is appropriate that there be no costs order in respect of the hearing on 9 November 2023. 6 Accordingly, the substantive orders that will be entered are: (1) The appeal be dismissed. (2) The first and second appellants pay the first respondent's costs of the appeal up to and including any costs incurred on 8 November 2023 and including the costs of preparation for the hearing. I certify that the preceding six (6) numbered paragraphs are a true copy of the Supplementary Reasons for Judgment of the Honourable Justice Burley. Associate: Dated: 17 November 2023 REASONS FOR JUDGMENT (Revised from the transcript) BURLEY J: 7 In these proceedings, the appellants appeal from a decision of the Federal Circuit Court of Australia, as it was then known, dismissing an application for review of a decision of the Administrative Appeals Tribunal under the provisions of the Migration Act 1958 (Cth). The Notice of Appeal was filed on 8 September 2020. On 22 September 2020, a Registrar of the Court made directions for the conduct of the proceedings, including for the filing of an outline of submissions by the appellants. Those directions were sent to the appellants at the email addressed notified by them to the court. The appellants acknowledged receipt. On 28 July 2023 and 19 September 2023, the court sent by email further correspondence concerning the listing of the matter for hearing. The 19 September 2023 email included details of the hearing on 9 November 2023. 8 The first respondent tendered an email dated 10 October 2023, addressed to the appellants, in which they are reminded of the hearing today and its location. The email also provides that if there is no appearance by the appellants, then the first respondent may seek orders that the appeal be dismissed with costs. 9 The proceedings were listed for hearing on 9 November 2023 and the appellants did not appear. The matter was called three times outside of court. The appellants did not file any written submissions or communicate with the court in respect of any of the correspondence sent to them since September 2020. In those circumstances, it is appropriate that the proceedings be dismissed pursuant to FCR 36.75(1)(a). This was the application made by the first respondent. I note that, in the event that there is an explanation presently unknown to the court as to why the appellants have not participated in the hearing, then there is an opportunity for the appellants to make an application under FCR 36.75(2). 10 The orders that I make are: (1) The appeal be dismissed. (2) The first and second appellants pay the first respondent's costs of the appeal. (3) The first respondent serve a copy of these reasons on the appellants forthwith upon receiving them. (4) The name of the first respondent be amended to be "Minister for Immigration, Citizenship and Multicultural Affairs". I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate: Dated: 17 November 2023 SCHEDULE OF PARTIES NSD 1030 of 2020 Appellants Fourth Appellant: CWR19