AID15 v Minister for Immigration and Border Protection

[2015] FCA 1257

FEDERAL COURT OF AUSTRALIA

AID15 v Minister for Immigration and Border Protection [2015] FCA 1257

Citation:	AID15 v Minister for Immigration and Border Protection [2015] FCA 1257
Appeal from:	Application for extension of time: AID15 v Minister for Immigration and Border Protection [2015] FCCA 1473 and AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028
Parties:	AID15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 952 of 2015
Judge:	FARRELL J
Date of judgment:	17 November 2015
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) rr 35.13, 35.33(1)(a)(i), 36.03
Cases cited:	AID15 v Minister for Immigration and Border Protection [2015] FCCA 1473 AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028
Date of hearing:	17 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The appellant did not appear
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Sparke Helmore Lawyers
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 952 of 2015

BETWEEN:

AID15
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	17 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellant’s notice of appeal filed on 12 August 2015 be treated as an application for extension of time to appeal and an application for extension of time to apply for leave to appeal.

2.The application be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

3.The appellant pay the first respondent’s costs as agreed or taxed.

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 952 of 2015

BETWEEN:

AID15
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	17 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 12 August 2015, the appellant filed a Notice of Appeal in which she states that she appeals from “all of the orders of the Federal Magistrates Court given on 03 June 2015 at Sydney”. The Federal Circuit Court replaced the Federal Magistrates Court on 11 April 2013. The appellant was not subject to any orders made by the Federal Circuit Court on 3 June 2015.

2. The appellant was the subject of two judgments of the Federal Circuit Court. First, on 29 May 2015, a Federal Circuit Court judge dismissed the appellant’s application for judicial review of a decision of the Tribunal that it did not have jurisdiction to review a decision of a delegate of the Minister to refuse the appellant a Protection (Class XA) visa because the application was not made within time: AID15 v Minister for Immigration and Border Protection [2015] FCCA 1473 (“AID15 (No 1)”). The appellant did not appear at the hearing in the Court below on 29 May 2015. Second, on 27 July 2015, the Federal Circuit Court judge dismissed an application in a case filed by the appellant on 2 September 2015 seeking to set aside the first judgment: AID15 v Minister for Immigration and Border Protection (No 2) [2015] FCCA 2028 (“AID15 (No 2)”).

3. The Minister has filed a Notice of Objection to Competency in which he objects to the jurisdiction of this Court to hear the appeal because:

   (1)No orders were made on the date in respect of the appellant from which to appeal;

   (2)If the appeal is from the judgment and orders of the Federal Circuit Court given on 29 May 2015, then the notice of appeal was not filed within the time period prescribed by r 36.03 of the Federal Court Rules 2011 (Cth) and the appellant has not been granted an extension of time to file a notice of appeal; and

   (3)If the appeal is from the orders of the Federal Circuit Court dated 27 July 2015, those orders were interlocutory in nature and:

   (a)The appellant has not been granted leave to appeal against the orders pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth); and

   (b)The appellant did not file an application for leave to appeal from the orders within the time period prescribed by r 35.13 of the Federal Court Rules and the appellant has not been granted an extension of time to file an application for leave to appeal.

4. The appellant did not file written submissions and did not appear at the scheduled time for the hearing at 10.15 am. Enquiries were made at the Registry and attempts were made to contact the appellant by telephone. The appellant could not be contacted. Counsel for the Minister advised that the Minister’s legal representative had sent notice of the hearing today to the address of the appellant set out in the notice of appeal. Notice had also been given by the Federal Court’s Registry.

5. Counsel for the Minister accepted that the notice of appeal should be treated as an application for extension of time, noting that it was unclear whether it was AID15 (No 1) or AID15 (No 2) from which the appellant sought to appeal. Having regard to the fact that this is a migration matter in which the applicant is self-represented, I accept that it would be appropriate to treat the notice of appeal as an application for extension of time. Given that it is unclear as to which decision of the primary judge the appellant seeks to challenge, I will treat the application as an application for extension of time to appeal and an application for extension of time for leave to appeal.

6. Counsel for the Minister applied for the application to be dismissed under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) due to the appellant’s non-appearance. I will accede to the Minister’s application and order that the appellant pay the Minister’s costs as agreed or taxed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        17 November 2015