AXG16 v Minister for Immigration

[2016] FCCA 1805

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXG16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1805

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – no appearance by or on behalf of the applicant – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 44.12

Applicant: AXG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 927 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 15 July 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Ms D McLaren
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 costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 927 of 2016

AXG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Tribunal made on 19 March 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. On 2 June 2016, this matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 by a registrar of the Court.  Orders were made providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

3. The matter has been called outside the Court and the applicant has failed to appear. The first respondent has moved, under r.13.03C(1)(c), for the application to be dismissed. There has been tendered and marked in evidence, a letter dated 6 July 2016 sent to the applicant’s address as identified on the application. That letter foreshadowed that the first respondent would move to have the matter dismissed with costs under r.13.03C(1)(c) of the Federal Circuit Rules 2001 if the applicant failed to appear and reminded the applicant of the hearing date. 

4. An email was also tendered and marked in evidence dated 6 July 2016 sent to the applicant’s email address as identified on the application, notifying the applicant to the same effect as the letter. The applicant has failed to appear. I am satisfied that the applicant was notified of the hearing date. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Rules 2001.

5. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Rules 2001.

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

Date: 26 July 2016