AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1471

FEDERAL COURT OF AUSTRALIA

AUD15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1471

Appeal from:

Application for extension of time: AUD15 v Minister for Immigration & Anor [2016] FCCA 3159

File number:

WAD 72 of 2017

Judge:

ABRAHAM  J

Date of judgment:

6 September 2019

Catchwords:

PRACTICE AND PROCEDURE – where applicant has voluntarily left country with no lawful right of re-entry – where condition of the grant of a protection visa is that the applicant is in Australia – where applicant’s solicitor unable to obtain instructions from the applicant and therefore seeking leave to withdraw – application for extension of time to appeal from a decision of the Federal Circuit Court dismissing application to review decision of the Administrative Appeals Tribunal affirming decision of the delegate to refuse the applicant a Subclass 866 Protection Visa – application for extension of time refused

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)

Migration Regulations 1994 (Cth) sch 2 cl. 866.411

Date of hearing:

7 August 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

11

Solicitor for the Applicant:

Mr G Arujunan of AUM Legal

Solicitor for the First Respondent:

Mr A Gerrard of Australian Government Solicitor

Solicitor for the Second Respondent:

The second respondent filed a submitting notice

ORDERS

WAD 72 of 2017

BETWEEN:

AUD15

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ABRAHAM  J
DATE OF ORDER:	6 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.Leave is granted for Mr Ganasan Arujunan of AUM Legal to withdraw as the solicitor on the record for the applicant.

2.The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3.The applicant’s application for an extension of time filed on 3 February 2017 be refused.

4.The respondent is able to effect service on the applicant at the email address of the applicant.

5.The applicant pay the first respondent’s costs to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. On 7 August 2019, the respondent made an application for orders 2, 3, 4 and 5 above, which were made that day. These are brief reasons as to the circumstances as to making those orders.

2. This matter was listed for case management hearing in relation to the applicant’s application for an extension of time in which to lodge his application for appeal from a decision of the Federal Circuit Court delivered on 9 December 2016 which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal, made on 3 May 2015. Documentation filed also reflects that the applicant would need leave to amend his grounds of appeal to rely on grounds not argued in the Court below.

3. At the time of filing the grounds of appeal and submissions, the applicant was legally represented. Those representatives have not been in contact with the applicant since February 2019, despite attempts to do so. As a result, the respondent made enquires as to whether the applicant had left Australia. 

4. An affidavit relied on by the respondent established that the applicant left Australia on 8 March 2019. As a result of the applicant’s departure from Australia his Bridging Visa E has ceased. Therefore the applicant does not currently hold a valid visa. The last visa held by the applicant did not convey a right to return to Australia. Consequently, the applicant does not hold a visa which would allow him to lawfully return to Australia.

5. The applicant departed the country voluntarily and without notifying his legal representatives. Nor has he communicated with his legal representatives since leaving the country in March 2019. His legal representatives have had no contact with him since February 2019. They have been unable to obtain any instructions as to the conduct of the matter, and accordingly sought leave to withdraw. Leave was granted.

6. The respondent being aware of these circumstances prior to the listing of the matter for hearing, applied to the Court to have the matter listed for case management hearing, instead of hearing, in order to ensure that Court time was appropriately utilised given that the applicant was not in the country and could not prosecute his application.

7. As noted above, at the case management hearing the respondent made an application to have the applicant’s application for an extension of time filed on 3 February 2017 refused.

8. The application for an extension of time to appeal from the Federal Circuit Court’s decision relates to a decision refusing a Subclass 866 Protection (Class XA) visa. It is a requirement that an applicant be in Australia to be granted such a visa: Migration Regulations 1994 (Cth) sch 2 cl. 866.411. To state the obvious, the applicant is not in Australia. As the applicant has departed Australia, and has no right to re-enter Australia, he could not be granted the visa even if ultimately successful before this Court. Accordingly, the respondent submitted that the application is clearly futile and that it should be dismissed. The respondent’s submission, given the particular circumstances of this case, is correct.

9. Moreover, as the respondent correctly observed, even if that were not the case, the applicant’s legal representatives have advised the Court that they are unable to obtain instructions or continue acting for the applicant. The applicant has left the country and has no right of re-entry. In practical terms, if this matter were to be listed for the substantive hearing the applicant would fail to appear. In those circumstances, the appeal would be dismissed with costs for non-appearance: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii); Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i).

10. The respondent submitted that in any event, ultimately this case involves an applicant who requires an extension of time in which to file a notice of appeal and  leave to advance new grounds of appeal not argued below, in circumstances where the applicant voluntarily left the country without informing his legal representatives, does not have a valid visa to return and therefore cannot appear, or prosecute the matter, and in respect of an application for a visa that ultimately cannot be granted (as he is not in the country). That is correct.

11. In those circumstances the application for the extension of time in which to appeal was refused.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

Associate:

Dated:       6 September 2019