AOB15 v Minister for Immigration

[2016] FCCA 1850

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1850

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – no appearance by or on behalf of the applicant – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: AOB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1106 of 2015

Judgment of: Judge Street

Hearing date: 20 July 2016

Date of Last Submission: 20 July 2016

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Ms S Sangha
Mills Oakley Lawyers

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

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

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1106 of 2015

AOB15

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 (Cth) in respect of a decision of the Tribunal made on 25 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. On 17 May 2016, this matter was listed for hearing and a notice of the listed for hearing today and a notice of listing was sent both to the applicant’s legal representative and the applicant’s address as identified on a notice of withdrawal as lawyer filed by the applicant’s former legal representative on 2 May 2016.  On 13 July 2016, a letter was sent by the solicitors for the first respondent to the same address identified on the notice of withdrawal as lawyer foreshadowing an application to have the proceedings dismissed with costs if the applicant failed to appear.

3. The notice of withdrawal as lawyer also contained a mobile telephone number for the applicant. The solicitor for the first respondent had endeavoured to contact the applicant on that telephone number and had found it was no longer connected and the Court also this morning endeavoured to contact the applicant on that telephone number in open court and the message recorded that the telephone number had been disconnected.  On the material before the Court, I am satisfied that the applicant was notified of the hearing date.

4. The first respondent has moved for an order under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The first respondent has not had any communication from the applicant and there was no explanation for the applicant’s failure to appear today. I am satisfied that this is an appropriate matter in which to exercise the court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I dismiss the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016