AEJ15 v Minister for Immigration and Border Protection

[2015] FCA 1216

FEDERAL COURT OF AUSTRALIA

AEJ15 v Minister for Immigration and Border Protection [2015] FCA 1216

Citation:

AEJ15 v Minister for Immigration and Border Protection [2015] FCA 1216

Appeal from:

AEJ15 v Minister for Immigration & Anor [2015] FCCA 876

Parties:

AEJ15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL

File number(s):

NSD 364 of 2015

Judge(s):

GRIFFITHS J

Date of judgment:

10 November 2015

Catchwords:

MIGRATION – where the Federal Circuit Court of Australia (‘FCCA’) summarily dismissed the proceeding without notice to the applicant – where the first respondent accepts the FCCA erred – where the applicant has not responded to proposed consent orders which involved the appeal being allowed and the matter remitted to the FCCA – where the first respondent claims the applicant has departed Australia  

Legislation:

Federal Court of Australia Act1976 (Cth) s 37AF

Federal Court Rules 2011 (Cth) r 35.33(1)(a)(i)

Cases cited:

Shrestha v Migration Review Tribunal [2015] FCAFC 87

SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88

Date of hearing:

10 November 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Applicant:

The applicant did not appear

Solicitor for the First Respondent:

M Glavac, Clayton Utz

Counsel for the Second Respondent:

The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 364 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AEJ15
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	10 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal dated 10 April 2015 be dismissed under rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.There be no order as to costs. 

3.Under s 37AF of the Federal Court of Australia Act1976 (Cth) the affidavit of Mikhail James Glavac affirmed 22 October 2015 not be published, because to do so would prejudice the proper administration of justice by identifying the applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 364 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AEJ15
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRIFFITHS J
DATE:	10 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced on 10 April 2015 when the applicant filed an application for leave to appeal against a judgment dated 9 April 2015 of the Federal Circuit Court of Australia (FCCA).  The application was supported by an affidavit affirmed by the applicant on the same day.  The applicant contended that the primary judge had fallen into jurisdictional error and denied him procedural fairness in summarily dismissing his judicial review application on 9 April 2015.

2. Various directions were made to have the application listed for hearing.  On 22 July 2015, the Court Registry wrote to the applicant at his last known address, drew his attention to the Full Court’s decisions in Shrestha v Migration Review Tribunal [2015] FCAFC 87 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, and indicated that the Minister accepted that the FCCA had erred in relation to the decision the subject of his judicial review application. The applicant was invited to agree to consent orders which would have the FCCA orders set aside and the matter remitted to another FCCA judge to be heard according to law. The applicant was also advised in the letter that a directions hearing was scheduled for 13 August 2015.

3. The applicant did not appear at that directions hearing.  I made orders that day that the application for leave to appeal and the appeal be listed for hearing at a future date, which was subsequently scheduled for today. 

4. When the proceedings were called this morning, there was no appearance by the applicant.  It emerged from an affidavit of Mikhail Glavac (affirmed on 22 October 2015) that the Department’s records indicate that the applicant departed Australia on 14 September 2015 and that his current whereabouts are unknown.  Mr Glavac is a solicitor at Clayton Utz, who are the Minister’s solicitors in the proceedings. 

5. The Minister applied to have the application for leave to appeal dismissed and an order made requiring the applicant to pay the Minister’s costs fixed in the amount of $2,178. 

6. Given the absence of the applicant when the hearing was called, I consider that it is appropriate to dismiss the application for leave to appeal under rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth). This course of action leaves open what appears to be only a remote possibility that the applicant may make an application under rule 35.33(2).

7. As to the issue of costs, in circumstances where the Minister has acknowledged that the FCCA’s decision and orders were erroneous, it is not appropriate to order the applicant to pay the Minister’s costs. 

8. Accordingly, the following orders will be made:

   (a)the application for leave to appeal dated 10 April 2015 be dismissed under rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth); and

   (b)there be no order as to costs; and

   (c)under s 37AF of the Federal Court of Australia Act1976 (Cth) the affidavit of Mikhail James Glavac affirmed 22 October 2015 not be published, because to do so would prejudice the proper administration of justice by identifying the applicant.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        10 November 2015