Aox15 v Minister for Immigration and Border Protection
[2017] FCA 297
•1 March 2017
FEDERAL COURT OF AUSTRALIA
AOX15 v Minister for Immigration and Border Protection [2017] FCA 297
Appeal from: Application for extension of time and leave to appeal AOX15 v Minister for Immigration & Anor [2016] FCCA 2510 File number(s): NSD 1757 of 2016 Judge(s): YATES J Date of judgment: 1 March 2017 Catchwords: MIGRATION – refusal of protection visa under s 65 of the Migration Act 1958 (Cth) – application for extension of time and leave to appeal from judgment of Federal Circuit Court Legislation: Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Date of hearing: 1 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondents: Ms N Blake of Clayton Utz ORDERS
NSD 1757 of 2016 BETWEEN: AOX15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
1 MARCH 2017
THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal, filed on 11 October 2016, be dismissed.
2.The applicant pay the first respondent’s costs, fixed pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth), in the sum of $3,160.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)YATES J:
On 11 October 2016, the applicant filed an application for extension of time and leave to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court), given on 20 September 2016. In that judgment, the Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal, which had affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), whereby the applicant was refused a Protection (Class XA) visa (a protection visa), pursuant to s 65 of the Migration Act 1958 (Cth) (the Migration Act).
In the reasons for judgment of the Federal Circuit Court, the primary judge recorded that when the proceeding for judicial review in that court was first listed for hearing on 2 August 2016, the applicant failed to appear. An order was made under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) dismissing the application for judicial review.
On 22 August 2016, the applicant applied to reinstate his case. The primary judge treated this as an application for an order pursuant to r 16.05(2)(a) FCCR, to set aside the orders that had been made on 2 August 2016. This application was listed for hearing on 20 September 2016. Although on that day the applicant was brought to the Federal Circuit Court from Immigration Detention, he expressed the desire not to appear. Although other options were open to him because of the applicant’s non-appearance, the primary judge proceeded to hear the matter and determine it on its merits.
The applicant raised two grounds of review before the Federal Circuit Court. In a comprehensive analysis of those grounds, the primary judge concluded that neither ground had reasonable prospects of success and that, accordingly, there was no utility in setting aside the orders made on 2 August 2016. The application to reinstate was, therefore, dismissed. It is in respect of that judgment that the applicant seeks leave to appeal to this Court and to extend time to do so.
An extension of time is required because any application for leave to appeal should have been filed within 14 days after the date on which the Federal Circuit Court judgment was pronounced: r 35.13 of the Federal Court Rules 2011 (Cth) (FCR). On my reckoning, the application for leave to appeal should have been filed by 4 October 2016. As I have noted, the present application was filed on 11 October 2016.
Notwithstanding the filing of the present application, the applicant sought removal from Australia at his own request as an unlawful non-citizen, pursuant to s 198(1) of the Migration Act. The date of the request is not clear. What is clear is that the applicant was removed on 3 November 2016 without a right of re-entry. It is apparent that his request for removal must have been made after 11 October 2016.
In making his request, the applicant acknowledged that his removal from Australia may affect his future re-entry rights to Australia. The applicant also acknowledged that if he had outstanding visa applications, requests or legal proceedings which were not withdrawn, then consideration of his claims might be dismissed by the Department of Immigration and Border Protection or relevant review bodies, including the courts, once he was removed from Australia. The applicant left no forwarding address at which he could be contacted once removed.
I have no doubt that when the applicant was removed from Australia at his own request he was aware that the present application to extend time and for leave to appeal was on foot and remained undetermined.
The Minister opposes the present application on essentially three grounds.
First, the Minister submits that the present application should be dismissed for want of appearance under r 35.33(1)(a)(i) FCR. That rule provides that if an applicant is absent when an application for leave to appeal or for an extension of time to seek leave to appeal is called on for hearing, the other party (here, the Minister) may apply to the Court for an order that the application be dismissed.
Secondly, the Minister submits that the applicant is currently outside Australia and does not hold a visa which permits lawful re-entry into Australia. In such circumstances, the Minister says that any appeal would be rendered moot and, for that reason, the present application should be dismissed.
By way of further explanation, the Minister says that, on the assumption that the applicant were to be ultimately successful in having the Tribunal’s decision set aside, it would be incumbent on the Tribunal to conduct a review and reach a conclusion as to whether the applicant meets the criteria for a protection visa. The applicant could not satisfy those criteria because of his non-presence in Australia. A protection visa can only be granted to an applicant who is in Australia. As the applicant is no longer in Australia and has no right of re-entry, it would follow that he could not be granted the protection visa for which he has applied. Thus, it would be futile to grant the present application.
Thirdly, the Minister submits that there is no reason to doubt the correctness of the judgment of the Federal Circuit Court in light of the reasons provided by the primary judge.
In the present case, I propose to move under r 35.33(1)(a)(i) FCR. As I have said, I have no doubt that when the applicant was removed from Australia at his own request he was aware that the present application to extend time and for leave to appeal was on foot and remained undetermined. There is no evidence before me that the applicant is aware of today’s listing but, even so, I can comfortably conclude that, by seeking his own removal from Australia last year without a right of re-entry, and in failing to provide any forwarding address while the present application remains on foot, the applicant consciously abandoned his application.
There is no evidence to suggest that, after his removal from Australia, the applicant has taken any steps to notify the Minister or the Court of any intention to appear or otherwise prosecute his application. In the circumstances, it seems to me that I would be fully justified in proceeding under r 35.33(1)(a)(i).
I should, nevertheless, indicate that, in any event, the Minister’s submissions on the futility of the present application are compelling and provide an independent basis on which I would dismiss the present application. In the circumstances, I do not propose to deal with the reasons of the primary judge.
For these reasons, the application for extension of time and leave to appeal will be dismissed.
The Minister seeks an order under s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) that costs be awarded in a specified sum. On the evidence before me, as at 21 February 2017, the Minister had incurred professional costs in this matter in the sum of $4,064. Further costs have been incurred in relation to the hearing today. Allowing for an appropriate “rule of thumb” discount of 30%, the Minister seeks costs in the sum of $3,160.
I have reviewed an affidavit setting out, in broad terms, the work that has been undertaken for the Minister in this proceeding. I am satisfied that the sum sought is fair and reasonable and reflects the amount that is likely to be awarded on a taxation of costs. Therefore, costs in that sum should be awarded.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 1 March 2017
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