Aht15 v Minister for Immigration

[2019] FCCA 2560

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHT15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2560

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – order for dismissal for non-appearance under Rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

Legislation:

Migration Act 1958 (Cth)

Applicant: AHT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 848 of 2015

Judgment of: Judge Dowdy

Hearing date: 22 August 2019

Delivered at: Sydney

Delivered on: 22 August 2019

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Ms K. Gawidziel

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 27 March 2015 is dismissed, pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $1,367.

3. In the event that the Applicant files an Application in a Case to set aside the dismissal today of her Application she is to be prepared on the first return date of her said Application in a Case:

   (a)to run her Application in a Case to set aside the dismissal;  and

   (b)to run her substantive application for relief with respect to the Tribunal decision below.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 848 of 2015

AHT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. In this matter, the First Respondent makes an application for dismissal of the Application filed in this Court on 27 March 2015 pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the Rules) in the following context.

2. I was approached a few minutes ago in Chambers by his Honour Judge Street, to ask if I could deal with the matter, it having come to his attention that the Applicant had not appeared at a directions hearing scheduled for today against the following background.

3. On 23 April 2015 Judge Street had dismissed the Application, however his Honour’s orders were set aside by consent on 10 November 2015 when Griffiths J in the Federal Court of Australia gave short reasons for judgment which set out the position and which, in short, provided for not only the setting aside of the orders of Judge Street, but also for the remittal for rehearing to this Court of the Application by another judge of the Court.

4. The matter then came back to this Court and on 11 February 2016 Registrar Morgan dismissed the Application pursuant to Rule 13.03C(1)(c) of the Rules due to the failure of the Applicant to appear before him on that date. However, it then transpired that as a matter of law a Registrar of this Court was not then entitled to make such an order for dismissal, and so the matter came back before Judge Street, and I mean “came back” in an administrative sense, as I understand it, rather than in Court.

5. On 24 June 2019, presumably for abundant caution, Judge Street made an order that the Registrar’s dismissal be set aside and listed the matter for directions today, 22 August 2019, at 2:15pm. Various other orders of a procedural nature were made at the same time, and it was noted in paragraph 5 of his Honour’s orders that if the Applicant did not appear, the Court might dismiss the proceedings for absence of appearance.

6. Ms Gawidziel appears for the Minister and she relies on an affidavit of Ms Mengqi Ren affirmed on 16 August 2019, which establishes that on 5 August 2019 the Minister wrote to the Applicant to advise that the matter was listed today at 2:15pm in Court 9.1 before Judge Street for directions, and that she was required to attend and that if she failed to attend the First Respondent might seek leave to have the matter dismissed for non-appearance. That letter dated 5 August 2019 was sent by Ms Ren to the Applicant at the email address given by the Applicant on her Application filed in this Court.

7. The affidavit of Ms Ren also establishes that by an email dated 4 July 2019, the Australian Government Solicitor for the Minister forwarded to the Applicant copies of Judge Street’s orders of 24 June 2019 and confirmed the listing for directions today on 22 August 2019, again advising that if there was no appearance there would be an application for dismissal.

8. I note that the affidavit of Ms Ren would not, in a strict sense, prove service by post of the notification of today’s directions hearing, but that the letter was also sent by the Court by email to an email address which my Associate informs me from his search of the Court records was entered as the email address of the Applicant on 27 March 2015. I am prepared to act on the basis that the Court’s records are accurate, and so therefore the Minister has shown proper service of today’s date, but there is no appearance for or by the Applicant and in those circumstances it is, in my view, eminently reasonable that the matter be dismissed, as requested by the Minister.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  16 September 2019