Background
CCS23, a Malaysian citizen, arrived in Australia in May 2017 on an Electronic Travel Authority and applied for a permanent Protection (Class XA) (subclass 866) visa the following month. A ministerial delegate refused the application, and the former Administrative Appeals Tribunal affirmed that refusal.
The Federal Circuit and Family Court of Australia (Division 2) dismissed CCS23’s judicial-review application. CCS23 appealed to the Federal Court, alleging that the Tribunal had failed to consider all claims and materials, had demonstrated actual bias through excessive discretionary power, and had denied procedural fairness, and that the primary judge had been biased.
The Court’s Holding
Justice Lenehan dismissed the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) because CCS23 did not attend the hearing. The Court noted that hearing details and a warning that orders could be made in his absence had been emailed to the address in his notice of appeal, and that the Minister’s solicitors had also warned that dismissal with costs might be sought if he failed to appear.
CCS23 had not filed the written submissions required by earlier orders and did not appear after the matter was called outside the courtroom three times. An attempted telephone contact also failed. The Court did not determine the merits of CCS23’s four appeal grounds; it dismissed the appeal for non-appearance, ordered him to pay the Minister’s costs fixed at $2,500, and noted that he could apply under r 36.75(2) to set aside or vary the orders.
Key Takeaways
- An appellant’s failure to attend an appeal hearing may justify dismissal under r 36.75(1)(a)(i) of the Federal Court Rules.
- Advance notice of the hearing, warnings about absence, failure to file required submissions, and unsuccessful efforts to contact the appellant supported dismissal.
- The dismissal was procedural and did not resolve the merits of the alleged Tribunal or judicial errors; the appellant retained the ability to seek variation or setting aside of the orders.
Why It Matters
The decision illustrates the serious consequences of failing to comply with appellate timetables and attend a listed hearing, particularly where the Court and the opposing party have provided clear notice and warnings. Even an appeal raising bias and procedural-fairness allegations may be dismissed without substantive consideration when the appellant does not prosecute it.
For migration practitioners and self-represented litigants, the case also underscores the importance of keeping contact details current, filing ordered submissions, and responding promptly to hearing notices. A procedural dismissal can carry a costs order, although the Rules provide a mechanism for seeking to set aside or vary orders made in a party’s absence.