AIW16 v Minister for Immigration

[2016] FCCA 647

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIW16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 647

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – no appearance by the applicant – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235

Applicant: AIW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 1 of 2016

Judgment of: Judge Street

Hearing date: 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Sydney

Delivered on: 24 March 2016

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the First Respondent: Mr Powell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CAG 1 of 2016

AIW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal delivered on 16 December 2015. The application’s initiating proceedings was filed on 11 January 2016 and identified an email address for the applicant as well as a telephone number. That application was given a return date on 8 February 2016 at 9:30 am. The applicant appeared on that date and orders were made by the Court on 8 February 2016 providing for the applicant to be given an opportunity to file an amended application by 21 March 2016 and also providing an opportunity for the applicant to file submissions and listing the matter for a final hearing on 4 May.

2. On 8 March 2016, the original hearing date was vacated and the Court set the matter down for hearing on 24 March 2016 commencing at 10:15 am.  The applicant was again given an opportunity to file an amended application by those orders and also a timetable for the filing of submissions.  No amended application or any submissions were filed by the applicant.  The orders of the Court made on 8 March 2016 were sent to the applicant’s email address as identified on the application filed by the applicant.  The matter was listed today for hearing at 10:15 am.  It is now past 10:40 am and the applicant has failed to appear.

3. On the application filed by the applicant initiating the proceedings, there is also a telephone number.  Together with the assistance of a Mandarin interpreter, the Court endeavoured to contact the applicant on the telephone number identified on the application.  That endeavour was unsuccessful and it appears that the number has been disconnected.

4. The Court notes the history of this matter in relation to the first application for protection and that this is a second application for protection consistent with the principles in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235. In that regard, the applicant failed to attend the interview in respect of the second visa application and also failed to appear before the Tribunal in response to its invitation to attend and appear before the Tribunal. The second application was lodged after the applicant had remained unlawfully in Australia for a period from 17 September 2012 until March 2014.

5. The solicitor for the first respondent has received no notification or explanation from the applicant as to why he is unable to appear.  The solicitor for the first respondent has also tendered two emails, both confirming the listing of this matter for hearing today at 10:15 am, sent to the applicant’s email address.  The Court notes that the applicant’s email address in the application filed in this Court is different to the email address that he had used at the time he made the second protection visa application to the Tribunal for review of the delegate’s decision.  However, the phone number of the applicant is the same in both documents.  The Court is satisfied that the applicant was informed of the hearing date today. 

6. The first respondent moves for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I am satisfied that the applicant was aware of the hearing date and that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c).

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 April 2016