BMY15 v Minister for Immigration

[2018] FCCA 2463

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMY15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2463

Catchwords
MIGRATION – Protection (class XA) visa – Sri Lankan applicant – Tamil ethnicity – Roman Catholic religion.

PRACTICE & PROCEDURE – Applicant voluntarily departed Australia without a visa that would permit him to re-enter Australia – failed to appear when case was called on – minister sought summary dismissal for non-appearance – application dismissed on merits in view of applicant’s inability to re‑enter Australia.

Legislation

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

Applicant: BMY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1719 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 30 July 2018

Date of Last Submission: 30 July 2018

Delivered at: Melbourne

Delivered on: 30 July 2018

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: DLA Piper

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper

ORDERS

1. The application filed on 24 July 2015 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5 560.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1719 of 2015

BMY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Heading 1 style

1. On 10 August 2012 the applicant entered Australia unlawfully as an illegal maritime arrival.

2. On 29 November 2012 the applicant applied for a protection (class XA) visa.  The applicant claimed to be a citizen of Sri Lanka of Tamil ethnicity and a roman catholic by religion.  By decision dated 19 December 2013, the minister’s delegate decided to not grant the applicant the protection visa the applicant sought.

3. On 24 December 2013, the Refugee Review Tribunal, now the Administrative Appeals Tribunal, received the applicant’s application for a merits review.  On 13 May 2015, the tribunal wrote to the applicant, inviting him to attend before the tribunal to give evidence and present arguments on 16 June 2015.  The applicant’s solicitors, BMA Lawyers, completed the response to hearing invitation on the applicant’s behalf and returned it to the tribunal on 21 May 2015.  The day prior to the hearing, that is to say on 15 June 2015, BMA provided the tribunal with a 49 page, densely typed written submission in support of the applicant’s protection claims, addressing factual and legal matters in considerable depth.  The tribunal hearing record revealed that the tribunal hearing lasted for three and a-half hours.

4. On 28 June 2015, the tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa.

5. Being dissatisfied with the decision of the tribunal, the applicant sought judicial review in this court by application filed 24 July 2015.  In it the applicant alleged five grounds, none of which contained particulars by which the applicant contended the tribunal’s decision was affected by jurisdictional error.

6. On 7 December 2015 a registrar of this court made consent orders for the filing of various documents and for the hearing of this application.  On 22 August 2017 the parties were notified that this case was listed for hearing before me on 15 November 2017.  On 26 October 2017 I made orders by consent varying the dates prescribed by the registrar in his 7 December 2015 orders.  On 17 October 2017, the hearing date was altered to 6 December 2017.  By reason of the unavailability of counsel for the applicant, the hearing date of 6 December 2017 was vacated and the date 30 July 2018 was agreed between the parties and the court.

7. A little earlier, on 18 October 2017, counsel for the applicant filed submissions that accompanied an amended application also dated 18 October 2017.  In the amended application the applicant relied on two grounds of review.  First, the applicant said the tribunal fell into jurisdictional error in that it made findings without any logically probative evidence or was otherwise unreasonable.  Second, the applicant said the tribunal failed to consider a relevant consideration or an integer of the claim or a material question of fact.

8. On 11 May 2018, the applicant’s then solicitors (not being BMA) gave notice of withdrawal.

9. According to an affidavit affirmed 6 July 2018 Nabila Nisthar Buhary of the minister’s solicitors stated that on 2 May 2018 the applicant departed Australia and the applicant does not hold any visa that would permit him to re-enter Australia.

10. The applicant did not appear before me on the hearing of this application, despite being called by my associate, Ms Nega, three times.

11. In those circumstances, the minister’s solicitor submitted that I should dismiss this proceeding under r 13.03C(1)(c) of the Federal Circuit Court Rules. 

12. It seemed to me more appropriate to dismiss this proceeding on the merits in view of the fact that the applicant does not hold any visa that would permit him to re-enter the country to apply for reinstatement. 

13. In those circumstances, I dismiss this proceeding and order the applicant to pay the minister’s costs fixed in the sum of $5 560.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     5 September 2018