BFS17 v Minister for Immigration

[2017] FCCA 3043

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3043

Catchwords:
MIGRATION – Administrative Appeals Tribunal - application for a protection visa – no appearance by the applicant – whether appropriate matter for the Court to exercise its powers under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 – Court satisfied the applicant aware of the hearing date – application dismissed under r 13.03C(1)(c).

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: BFS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 860 of 2017

Judgment of: Judge Street

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 6 December 2017

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 860 of 2017

BFS17

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 1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 6 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The proceedings commenced on 22 March 2017. On 28 April 2017, a Judge of the court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. On 19 September 2016, this Court made orders fixing the matter for hearing today. The matter has been called and the applicant has failed to appear. The first respondent has tendered an affidavit dated 4 December 2017 annexing correspondence sent to the applicant’s residential and email address identified on the originating application referring to the listing today for hearing and foreshadowing an application to have the application dismissed with costs if the applicant failed to appear. The Court also endeavoured to contact the applicant on the applicant’s telephone number.

4. I am satisfied that the applicant was aware of the hearing date and 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 Court Rules 2001. Accordingly, the application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 July 2018