Bex17 v Minister for Immigration

[2020] FCCA 2371

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEX17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2371

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: BEX17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 837 of 2017

Judgment of: Judge Nicholls

Hearing date: 18 March 2020

Date of Last Submission: 18 March 2020

Delivered at: Sydney

Delivered on: 18 March 2020

REPRESENTATION

Applicant: No appearance

Representative for the Respondents: Mr L. Merrigan

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 21 March 2017 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 837 of 2017

BEX17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 21 March 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 16 February 2017 to affirm the decision of the Minister’s delegate not to grant the applicant a protection visa.

2. In evidence before the Court is a letter dated 28 February 2020 sent to the applicant from my chambers, tendered by the Minister, and marked respondent’s exhibit one (“RE1”).

3. I note that the correspondence marked RE1, from my chambers was sent to the applicant by express post to the address for service provided by the applicant in his application to the Court. 

4. The letter advised the applicant that the matter had been listed this morning (18 March 2020) at 10:00am before me. The letter also provided the address of the Court and noted the relevant Court room.

5. The letter at RE1 was sent to the address for service provided by the applicant. It appears that the letter was “returned to sender”. It is the applicant’s responsibility to notify the Court, and therefore the Minister, that he has changed address. That has not occurred.  That is a matter for the applicant. 

6. Based on the evidence before me, I am satisfied that reasonable steps were taken to give the applicant reasonable notice of today’s Court event. 

7. When the matter was called there was no appearance by, or on behalf of, the applicant. I note now that it is well passed the scheduled starting time. I also note that the applicant’s address for service was confirmed by the applicant in a document that was lodged with the registry in July 2017 which was at the first Court date in this matter. 

8. In circumstances where there was no appearance by or on behalf of the applicant, the Minister sought for the matter to be dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

9. I find that the applicant had reasonable notice of the Court event today, and there was no attendance by the applicant or any explanation for any failure to attend. Further, nothing has been heard from the applicant. It is appropriate that that order be made. I will make the order.

Costs

1. It is appropriate that an order for costs be made in the usual way.  Costs follow the event. The amount sought is reasonable in the circumstances. Written submissions were filed by the Minister in this matter in preparation and anticipation that the matter would be set down for final hearing which was, indeed, the purpose of today’s Court event. I will make that order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 August 2020