Bav18 v Minister for Home Affairs

[2019] FCA 151

FEDERAL COURT OF AUSTRALIA

BAV18 v Minister for Home Affairs [2019] FCA 151

Appeal from:	Application for extension of time:  BAV18 v Minister for Home Affairs [2018] FCCA 2026
File number:	NSD 1473 of 2018
Judge:	BANKS-SMITH J
Date of judgment:	19 February 2019
Catchwords:	MIGRATION - protection visa - application for extension of time to appeal - no identified grounds of appeal - no appearance by applicant
Legislation:	Federal Court Rules 2011 (Cth) r 35.33
Date of hearing:	19 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr C O'Sullivan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1473 of 2018

BETWEEN:

BAV18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	19 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time is dismissed pursuant to r 35.33(a) of the Federal Court Rules 2011 (Cth).

2.The applicant is to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. I made orders today dismissing the applicant's application.  These are my reasons.

2. The applicant seeks an extension of time in which to appeal from the decision and orders of the Federal Circuit Court of Australia.

3. On 25 July 2018 the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the delegate not to grant the applicant a protection visa:  BAV18 v Minister for Home Affairs [2018] FCCA 2026.  That proceeding in the Federal Circuit Court had commenced with a show cause application.

4. The applicant filed an affidavit in this Court dated 8 August 2018 that did not address the reasons for delay, although the application itself referred to the need to seek an exemption for Court fees and a misapprehension that there was a period of 28 days for filing a notice of appeal.  The delay in filing was relatively short, being eight days.  The affidavit attached the primary judge's reasons.

5. No draft notice of appeal was provided.  Despite programming orders, the applicant filed no submissions.

6. The applicant has not appeared today.

7. The Court had taken steps to inform the applicant by email of the hearing date.  My Associate, with the assistance of an interpreter, made four attempts to telephone the applicant on the contact number on the court records.  On the first occasion, the person who answered the phone hung up shortly after the interpreter had said 'hello' and my Associate had commenced speaking.  On the second occasion, the phone rang out.  In my presence, a third attempt was made and the call appeared to go to a voicemail service.  Also in my presence, a fourth attempt was made and the phone again appeared to have been diverted to a voicemail service or otherwise diverted.  The applicant was also called by the Court Officer in the Court precinct but there was no appearance.

8. The first respondent applies under r 35.33(a) of the Federal Court Rules 2011 (Cth) for the application to be dismissed.

9. I am satisfied that the applicant was absent when the matter was called on for hearing and I am satisfied that he was given due notice of the hearing.

10. In the circumstances of the applicant's non-appearance today and absent any communications or submissions from him that elucidate the grounds of his application or proposed appeal, I consider it is appropriate that the application be dismissed.  There will be an order that the applicant pay the first respondent's costs to be assessed if not agreed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Associate:

Dated:       19 February 2019