Axn16 v Minister for Immigration

[2016] FCCA 2826

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2826

Catchwords:

MIGRATION –Application for extension of time – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.426A

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

First Applicant: AXN16

Second Applicant: AXO16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 353 of 2016

Judgment of: Judge Vasta

Hearing date: 17 October 2016

Date of Last Submission: 17 October 2016

Delivered at: Brisbane

Delivered on: 17 October 2016

REPRESENTATION

There being no appearance by or on behalf of the Applicants

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application for an extension of time be dismissed.

2. That all outstanding application are otherwise dismissed. 

3. That the Applicants pay the First Respondent’s costs of the proceedings fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 353 of 2016

AXN16

First Applicant

AXO16

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 18 April 2016, the Applicants seek to review a decision of the Administrative Appeals Tribunal that affirmed a decision of the delegate for the Minister not to give the Applicants a protection visa. 

2. The background to this matter is that the First Applicant, who was a citizen of India, lodged the application.  The Applicant’s husband also applied for a visa as a member of the Applicant’s family and did not raise his own claims for protection.  Therefore, the application of the husband rises or falls on the primary Applicant wife’s application. 

3. The Applicant claims she left India due to a threat to her life and that she had been tortured physically and mentally in India, and she claims she would be harmed by the authorities in India if required to return because of widespread corruption and power in the hands of influential people.  The delegate refused the grant of the visa and that was partly because the delegate noted that the Applicants did not appear before it at the scheduled interview.  The Applicant then lodged an application for review to the Tribunal. 

4. The Tribunal sent a notice to the Applicant, inviting the Applicant to appear on 12 February 2016.  It was sent to the Applicant’s nominated email address.  The Applicant responded to the invitation on 12 January 2016. 

5. On 5 February 2016 and 11 February 2016, SMS hearing reminders were sent to the Applicant’s nominated mobile telephone number.  The Applicant failed to appear at the hearing on 12 February 2016.  The Tribunal then wrote to the Applicant by way of email, informing her that the Tribunal had dismissed the application for review on the basis that she failed to attend and had not given a satisfactory reason. 

6. As the Tribunal dismissed the application pursuant to s.426A of the Migration Act 1958 (Cth), the Applicant could apply in writing for reinstatement of her application if she did so by 26 February 2016.

7. The Tribunal notified her of that fact on 12 February 2016 and the Applicant did not respond to the correspondence.  Therefore, on 7 March 2016, the Tribunal confirmed the decision to dismiss the application for review and they gave a written statement setting out the decision to dismiss. 

8. The Applicant then filed an application to show cause in this Court.  I made orders as to how the proceedings would go and asked the Applicant to submit any submissions.  The Applicant failed to do so. 

9. The only ground of this application is that: 

   “1. I strongly believe that the grounds of my application are completely genuine and I deserve a second chance.  The Administrative Appeals Tribunal dismissed my application because I could not attend the hearing.  I would like to bring to your kind information that I could not attend the hearing due to circumstances beyond my control.  I request the Federal Circuit Court to give me an opportunity to explain my circumstances in detail and have the Minister’s decision be quashed.”

10. I should say that that ground of the application does not raise a jurisdictional error at all.  The Tribunal has acted in accordance with the Act and has come to a finding that is open to it on the evidence. 

11. What the Applicant is simply saying to me, ignore the law and just give me another chance because I am a nice person.  That is not a ground upon which I could exercise my judicial functions to grant the application. 

12. There is a further complicating factor in that the application to this Court is seven days out of time. Therefore, leave needs to be given before I could even consider the matter. 

13. But overriding all of these matters is information contained in an affidavit of Ellen Lucy Goldsworthy Tattersall of 10 October 2016.  In that affidavit, Ms Tattersall declares that upon the searching of the database, the Applicant actually left Australia on 29 September 2016.  She does not have a valid visa to re-enter the country and, therefore, in many ways, this application is moot. 

14. That may explain why neither the Applicant, the Second Applicant nor the Minister have turned up today. 

15. Notwithstanding the moot nature of this application, I am of the view I should still proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 and hear the matter on the merits.

16. For the reasons that I have gone through, I refuse the application for leave to file the application out of time. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     12 December 2016