Adg16 v Minister for Immigration and Border Protection
[2018] FCA 1398
•27 August 2018
FEDERAL COURT OF AUSTRALIA
ADG16 v Minister for Immigration and Border Protection [2018] FCA 1398
Appeal from: ADG16 & Anor v Minister for Immigration & Anor [2018] FCCA 598 File number: NSD 263 of 2018 Judge: BARKER J Date of judgment: 27 August 2018 Catchwords: MIGRATION – application for protection (class XA) visa – appeal from Federal Circuit Court of Australia – appeal dismissed pursuant to R 36.75 of the Federal Court Rules 2011 (Cth) by reason of the appellant’s failure to attend the hearing Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) R 36.75
Date of hearing: 27 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr RJ White Solicitor for the First Respondent: Mills Oakley ORDERS
NSD 263 of 2018 BETWEEN: ADG16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
27 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
On 27 August 2018, I dismissed the appellant’s appeal in this matter. These are the edited ex tempore reasons I gave for doing so.
The appellant has appealed from a judgment and orders of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant him a protection (class XA) visa under the Migration Act 1958 (Cth).
The application for a protection visa initially failed before the delegate, and subsequently the Tribunal rejected the merits review application. The appellant then made a judicial review application to the Circuit Court.
A judge of that Court, on 15 February this year, found no jurisdictional error on the part of the Tribunal and dismissed that application. Initially, the protection application was made with the appellant’s wife as an additional applicant noted on the application but not making separate claims of her own.
This appeal was then made to this Court by the appellant – but, in those circumstances, not by his wife – on two grounds:
(1)that the Circuit Court erred in making an order that the Tribunal made no jurisdictional error; and
(2)that the primary judge failed to consider “the procedure fairness not afforded in the [protection] application processed by the Respondents”.
The appellant, despite notifications both from the Court and, as I am advised now, by the solicitors for the Minister, has failed to provide any written submission in the matter and has today, on the calling of the matter, failed to attend. The court officer has called for the appellant in the precincts of the Court, but there has been no response from him.
Application is now made on behalf of the Minister, pursuant to R 36.75 of the Federal Court Rules 2011 (Cth), by reason of the appellant’s failure to attend, for judgment to be entered. It seems to me that it is appropriate to do that. The appellant plainly has had full notice of the appeal hearing.
I might add, having considered the substance of the proposed grounds of appeal in relation to the Circuit Court judge’s decision, that there would appear to be very little by way of merit in the grounds of appeal put forward. As can be seen from the terms of the two grounds that I have mentioned, they lack any particularity so far as alleged error by the judge in the Court below is concerned. Indeed, when one has regard to the decision of the Tribunal and the recounting of that decision by the judge in the Court below, it is difficult to see that there could be any jurisdictional error or any denial of procedural fairness, which seem to be the broad propositions raised on the notice of appeal.
In all of these circumstances, the appeal should be dismissed with costs.
Appropriate orders would appear to be:
(1)The appeal be dismissed.
(2)The appellant pay the first respondent’s costs, to be assessed if not agreed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 11 September 2018
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