Aow18 v Minister for Home Affairs

[2019] FCCA 737

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOW18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 737

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Home Affairs to refuse a Protection visa – applicant has left Australia and has no legal right to return – non-appearance at final hearing by applicant – application dismissed with costs pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth)

Applicant: AOW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 319 of 2018

Judgment of: Judge Dowdy

Hearing date: 8 March 2019

Delivered at: Sydney

Delivered on: 8 March 2019

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the Respondents: Ms M. Butler

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 8 February 2018 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 319 of 2018

AOW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant is a female citizen of China who was born on 8 October 1976. 

2. The Applicant applied for a Protection (Class XA) (Subclass 866) visa (Protection visa) on 6 June 2016 but a Delegate refused to grant the Protection visa to her by a decision dated 22 September 2017.  She then applied to the Administrative Appeals Tribunal for merits review of the Delegate’s adverse decision on 21 December 2017.

3. However, by decision dated 16 January 2018 the Tribunal found that it had no jurisdiction to entertain the review application because the review application had not been lodged within the required 28 day period from the notification of the adverse decision and the forwarding of the Decision Record of the Delegate, both by email on the date of the Delegate’s decision, namely, 22 September 2017. 

4. On 8 February 2018, the present Application in this Court seeking judicial review of the Tribunal’s decision was filed in this Court.  On 6 April 2018, there was the first return date of the Application and the Applicant appeared in person before me and procedural orders were made to get the matter ready for hearing and the final hearing was set down for today at 11:00am.  It is now nearly 10 past 11:00am and the matter was called three times outside the Court at 11:00am and there was no appearance and I excused the interpreter who had been retained to assist the Applicant. 

5. The Minister has relied on the affidavit of Ms Butler affirmed on 12 December 2018 and it suffices for me to merely say that that affidavit establishes that the Applicant left Australia on 12 November 2018, being the last day of the only visa which entitled her to be in Australia, namely, a bridging visa, and so the evidence establishes that on the day of the expiry of the bridging visa which entitled her to be in Australia, she left Australia by plane. 

6. The Applicant is not in Australia and she does not appear before me and so she is an absent party and her application is moot because she is not in Australia and has no legal right to return because she has no extant visa at the present time.  Accordingly, the Minister seeks on an entirely justifiable basis that the Application be dismissed for the Applicant’s absence of appearance.

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

Associate: 

Date:  25 March 2019