BBR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2137

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2137

File number:

DNG 6 of 2021

Judgment of:

JUDGE YOUNG

Date of judgment:

25 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse to grant a Protection (Class XA) visa – where the applicant failed to appear – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 13.03C

Number of paragraphs:

5

Date of hearing:

25 August 2021

Place:

Darwin

The Applicant:

No appearance by or for the Applicant

Counsel for the First Respondent:

Mr Liveris

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

DNG 6 of 2021

BETWEEN:

BBR21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	25 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 23 April 2021 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2.The Applicant is to pay the First Respondent’s costs in the sum of $5,200.

3.In accordance with rule 16.05 of the Rules the applicant has liberty to apply to set aside the orders made today on filing and serving an application and affidavit setting out his reasons for wanting the orders set aside and explaining his non-attendance at court today within 28 days of receipt by him of a sealed copy of these orders.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 28 June 2019 to affirm a decision of the Minister’s delegate (the delegate) to refuse to grant a Protection (Class XA) visa.  The grounds of review do not appear to be drafted by a legally trained person and are somewhat difficult to follow. They do not on their face provide or indicate an obvious ground of review.  The applicant did not appear before the delegate and his application was dismissed for that reason. 

2. On the application being made to this Court for judicial review made on 26 April 2021, various things happened.  It was given a listing in front of me and, as the applicant lives in Alice Springs, arrangements were made for him to participate in the hearing by Microsoft Teams. 

3. I will briefly summarise what steps have been taken to engage the applicant in this application. On 19 July 2021, a listing notice was sent to him informing him that the matter was listed this afternoon before me.  On 19 August 2021, an email was sent to the applicant informing him that my associate would be conducting a test of his Microsoft Teams equipment on 24 August 2021 at 8.30 am and reminding him of the hearing today. There was no response to that.  On 23 August 2021 another email was sent to him with the Microsoft Teams invitation for a test run. The same day my associate made a telephone call and there was no answer.  A message was left for him.  Yesterday, 24 August 2021, the applicant did not attend the Microsoft Teams test run and my associate also telephoned him. There was no answer.  My associate left a message.  There was also a further email sent yesterday reminding him that the Microsoft Teams invitation for today’s hearing had been sent to his email address. The email address used was, in each case, the email address appearing in the application filed on 26 April 202, and the telephone number is the number similarly appearing in the application. I also asked my associate to telephone the number today at the outset of the hearing. The call went through to voicemail.

4. I am satisfied that the applicant has been given every opportunity to appear and make submissions today but he has not done so. There is no reason for his absence. 

5. Accordingly, I dismiss the application for a default of appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       7 September 2021