AIT15 v Minister for Immigration and Border Protection

[2016] FCA 952

FEDERAL COURT OF AUSTRALIA

AIT15 v Minister for Immigration and Border Protection [2016] FCA 952

Appeal from:

AIT15 v Minister for Immigration & Anor [2016] FCCA 1259

File number:

NSD 750 of 2016

Judge:

COLLIER J

Date of judgment:

12 August 2016

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Migration Act 1958 (Cth) s 65

Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)

Date of hearing:

12 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

9

Counsel for the Appellant:

The Appellant did not appear

Solicitor for the First Respondent:

Ms N Blake of Clayton Utz

Solicitor for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 750 of 2016

BETWEEN:

AIT15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	12 AUGUST 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.The appellant pay the costs of the first respondent fixed in the amount of $3,400.

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

REASONS FOR JUDGMENT

COLLIER J:

1. This is an appeal from the Federal Circuit Court decision in AIT15 v Minister for Immigration & Anor [2016] FCCA 1259 dated 5 May 2016. The primary Judge in this matter dismissed an application for review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), where the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

2. This morning there was no appearance by the appellant at the hearing. I asked the Court officer to call the matter outside the Court room however there was no response by the appellant. I then asked my Associate to telephone the appellant on the telephone number listed as her contact number on the Court file. My Associate informed me that there was no answer.

3. Ms Blake for the Minister tendered a copy of correspondence which had been sent to the appellant from Clayton Utz lawyers, who act for the Minister in this appeal. The correspondence included information as to the time and date of the hearing of the appeal, as well as a copy of the submissions of the Minister and an affidavit affirmed on 5 August 2016 by Ms Elodie Cheesman of Clayton Utz relating to the costs sought by the Minister in this proceeding. It appears that this correspondence was emailed to the appellant on 5 August 2016, namely a week ago.

4. No email response from the appellant was tendered.

5. I note hard-copy correspondence from the Court to the appellant in June 2016 on the Court file, which appeared to have been returned from the appellant’s address on the basis that the appellant had moved addresses, and received at the Court on 15 June 2016. However also on the Court file is a copy of an email from the NSW Appeals Unit to the appellant sent at 9.19 am on 5 August 2016 attaching a copy of programming orders, and a notification that the appeal was listed for hearing on 12 August 2016 at 10.15 am. There is nothing on the Court file to suggest that this email was not delivered to the appellant.

6. While there appears to be some uncertainty concerning the physical contact address of the appellant, no updated information as to her address appears to have been provided to the Court. I have no reason to doubt, however, that her email address has remained the same throughout the proceeding, and that she was aware of the hearing this morning.

7. I note that the appellant has not filed any written submissions in the appeal. The absence of written submissions filed by her does not persuade me that she was unaware of the hearing listed today.

8. The Minister has sought dismissal of the appeal pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). An additional basis on which the appeal can be dismissed is s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). In my view the appeal should be dismissed pursuant to both provisions.

9. Finally, the Minister has sought costs fixed in the sum of $3,400. In her affidavit Ms Cheesman deposes that this amount represents approximately 70% of the Minister’s professional costs. In the circumstances I am prepared to make this order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        12 August 2016