Asp17 v Minister for Immigration

[2020] FCCA 2422

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASP17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2422

Catchwords:
MIGRATION – Application for review of the decision of the Immigration Assessment Authority – no appearance by or on behalf of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Applicant: ASP17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 508 of 2017

Judgment of: Judge Nicholls

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Sydney

Delivered on: 10 March 2020

REPRESENTATION

Applicant: No appearance

Solicitors for the Applicant: Withdrew

Representative for the Respondents: Mr L. Dennis

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 21 February 2017 and as amended is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $7000.

4. Within 7 days of the date of the making of these orders, the Minister’s solicitors write to the applicant by letter sent by pre-paid post to the address provided in the ‘Notice of Intention to Withdraw as Lawyer’ as the last known address for the applicant and advise the applicant of the orders made today and of Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 508 of 2017

ASP17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. On 21 February 2017, the applicant, then legally unrepresented, filed an application pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”). He stated that he was seeking an extension of time by which he could make a substantive application to seek review of the decision of the Immigration Assessment Authority (“IAA”) which on 23 November 2016 affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. Subsequently, on 20 July 2017, the applicant instructed solicitors, Hodges Legal to act for him. With legal representation the applicant filed documents titled amended, and further amended, applications on 2 January 2019 and 2 December 2019, respectively. With the proposed amended and further proposed amended applications, it appears that the applicant, with legal representation, did not press the application for an extension of time pursuant to s.477(2) of the Act.

3. The applicant’s solicitors withdrew from this matter on 2 March 2020. The applicant was again unrepresented. The solicitor having withdrawn from this matter, was not available to explain why the extension of time was not pressed.

4. I have before me today an application initially made pursuant to s.477(2) of the Act, seeking leave to extend the time by which the applicant can make a competent applicant pursuant to s.476 of the Act to seek review of the decision of the IAA made on 23 November 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a “protection visa”.

5. At some point, the applicant was represented by Mr Hodges, solicitor, of Hodges Legal. In February of this year Mr Hodges gave notice of his intention to withdraw as the applicant’s lawyer. That notice appears to be consistent with the requirements of the Court’s Rules. On 2 March 2020 a notice of withdrawal as lawyer was filed. In the notices, dated 20 February 2020 and 2 March 2020 Mr Hodges gave the applicant the relevant information for the matter’s next listing before the Court, being: 10 March 2020 at 10:15am. That is, today. I note that the address of the Court was also provided.  

6. When the matter was called, there was no appearance by, or on behalf of, the applicant. The Minister sought for the matter to be dismissed for non-attendance, pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

7. I am satisfied given that he was legally represented at the relevant time that the applicant had reasonable notice of the Court event today.  I take into account that this morning, further steps were taken to contact the applicant at both telephone numbers available to the Minister’s solicitors, including the latest number provided by his now former solicitor. All the attempts were unsuccessful. There is a responsibility for applicants to make themselves available to the Minister’s department, and to notify the Court of their latest address for service. 

8. It is appropriate to dismiss the application for non-attendance pursuant to Rule 13.03C(1)(c) of the Rules. I will make that order. I note, also in that regard, the existence of Rule 16.05, if the applicant were to make himself known and available, he can be directed to that rule, and then he can choose whether to make an application to have his matter reinstated.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 August 2020