Anj15 v Minister for Immigration

[2015] FCCA 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANJ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2015

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – no appearance by applicant.

PRACTICE AND PROCEDURE – Dismissal under r13.03C(1)(c) – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Applicant: ANJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1087 of 2015

Judgment of: Judge Street

Hearing date: 24 July 2015

Date of Last Submission: 24 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr T. Galvin
Minter Ellison

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed for want of appearance.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1087 of 2015

ANJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 25 March 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.  The matter was the subject of directions made on 28 May 2015 that provided an opportunity for the applicant to amend the application to put on any affidavit evidence, as well as submissions.  No documents were filed by the applicant. 

2. The applicant attended on the day that the matter was fixed for hearing and was given a copy of the orders of the Court noting the matter was fixed for hearing at 12.15 pm.  It is now 2.30 pm and the applicant has been called outside the Court, both by pseudonym and with the benefit of a non-publication order by his full name.  The applicant has failed to appear. 

3. Apart from the Court order, the first respondent has sent correspondence to the applicant dated 3 June and 7 July, notifying the applicant of the return date and foreshadowing that, if there was a failure to appear, the application would be made to have the matter dismissed under r.13.03C(1)(c). I am satisfied that the applicant was aware of the hearing date and that this is an appropriate matter in which to exercise the powers under r.13.03C(1)(c).

4. That rule does provide a power, in default of appearance by a party, to permit the Court to proceed with the hearing generally and, where a matter has been fixed for hearing, that would generally be the preferable course consistent with the objects under the Federal Circuit Court Rules 2001. In this case, the correspondence to the applicant foreshadowed an application under r.13.03C(1)(c) simply seeking to have the application dismissed for want of appearance.

5. Where matters are fixed for hearing, both the Court and the parties that attend engage in steps or preparation to permit the determination of the matter, including the reading of the relevant material and appropriate reference to the legislative regime and authorities. This is utilising limited court resources and also the potential incurring unnecessary delay and expense. Had the first respondent identified the alternative potential course under r.13.03C(1)(e) and sought an under in that regard, it would clearly have been appropriate, albeit the consequence would be a final order rather than an interlocutory order as will follow under r.13.03C(1)(c).

6. It was not necessary in these circumstances to address the grounds of the application or the reasons of the Tribunal affirming the decision of the delegate not to grant the applicant a protection visa. 

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

Associate: 

Date:  28 July 2015