AQZ15 v Minister for Immigration

[2015] FCCA 2246

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQZ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2246

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c).

Legislation:

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

Migration Act 1958 (Cth), ss.476

Applicant: AQZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1237 of 2015

Judgment of: Judge Street

Hearing date: 19 August 2015

Date of Last Submission: 19 August 2015

Delivered at: Sydney

Delivered on: 19 August 2015

REPRESENTATION

No appearance from the Applicant

Solicitors for the First Respondent: Ms S Lloyd
Minter Ellison

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 First Respondent’s costs fixed in the amount of $6000

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1237 of 2015

AQZ15

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 Act 1958 (Cth) seeking a Constitutional writ in respect of a decision of the Tribunal made on 13 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.

2. Notwithstanding that the applicant did not disclose any grounds at all in support of the alleged jurisdictional error, the Court made orders on 11 June 2015 fixing the matter for hearing, and providing an opportunity for the applicant to file an amended application and to file affidavit evidence and to put on submissions.  No documents were filed by the applicant.  Submissions were filed by the first respondent.  On 15 July 2015 the applicant appeared, and the Court commenced the hearing marking certain documents as exhibits.  In the course of that hearing the applicant made an application for an adjournment, and the Court made further orders providing a further opportunity for the applicant to file any amended application, affidavit or submissions, and standing the part-heard matter over to 19 August 2015 at 10.15 am.

3. No further documents were filed by the applicant, and it is now past 10.30 am on 19 August and the applicant has failed to appear. The first respondent has also tendered an email sent on 17 August 2015 to the applicant reminding the applicant of the part-heard hearing date. The first respondent moves to have the matter dealt with under r.13.03C(1)(c) due to the absence of the applicant. I am satisfied that the applicant was well alive to the continuation of the part heard hearing date today, and that this is an appropriate case in which to exercise the Court’s powers under r.13.03C(1)(c).

4. Dealing with the application under this rule gives rise to an interlocutory order in respect of which the applicant can seek to have the orders set aside under r.16.05(2)(a). On such an application the Court will consider whether there is a satisfactory explanation for the want of appearance by the party and also whether the Court is satisfied that there is utility in setting aside the order. A similar position as to the ability to set aside an order made in the absence of the party also arises where the power under s.13.03C(1)(e) is exercised to proceed with the hearing albeit that there is then a final order. This is the type of case where it is more suitable to make an order under r.13.03C(1)(c). I should note however, that the costs that have been incurred in this case given the part heard nature of the hearing is one that the Court will take into account in relation to fixing the appropriate costs order.

5. The application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 21 August 2015