Bra15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1760
•28 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BRA15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1760
File number(s): MLG 1894 of 2015 Judgment of: JUDGE LUCEV Date of judgment: 28 July 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal to affirm refusal of Protection (class XA) visa – no appearance by Applicant - dismissal Legislation: Federal Circuit Court Rules2001 (Cth) rr 13.03C, 16.05(2)(c)
Migration Act 1958 (Cth) s 476
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
Number of paragraphs: 6 Date of hearing: 28 July 2021 Place: Perth For the Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Ms I. Minnett (via Microsoft Teams) Solicitor for the First Respondent: Clayton Utz For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1894 of 2015 BETWEEN: BRA15
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.
The Originating Application be dismissed for non-appearance pursuant to
r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
3.
The Applicant pay the First Respondent’s costs in the fixed sum of $7,467 by
28 August 2021.
THE COURT NOTES THAT:
A.An order made in the absence of the parties may be subject to an application to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
The matter before the Court is an application by the Applicant for judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”), sought pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The matter was listed for hearing today, and when the matter was called there was no answer to that call by the Applicant. The Court notes that this is a matter which was filed in the Melbourne Registry of the Court on 17 August 2015, and for a number of reasons, which need not now be detailed, it has taken a significant amount of time to come to final hearing.
The reasons for the delay are not dissimilar to those set out in other judgments of the Court as presently constituted in matters such as Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550. It is also relatively notorious that there are significant delays in hearing migrations matters in the Melbourne Registry of the Court, and in that regard, the Court refers to the Chief Judge’s comments in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25], where he observed that it is common knowledge that the Melbourne Registry of this Court has a large backlog. The Court also refers to GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy, where on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, the application for transfer was refused in circumstances where it would have meant that the application would not be heard for some two to three years if transferred.
Following the delays in bringing the matter to hearing, there was on 16 June 2021, a notice of re-listing sent to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for hearing on 28 July 2021 at 12.00 pm AEST before the Court as presently constituted sitting in Perth with a video-link to Melbourne. The parties were advised that they were required to attend the Federal Circuit Court of Australia at Melbourne and that a Nepali interpreter would be provided for the Applicant.
As is not uncommon nowadays, the COVID-19 pandemic intervened, and as a consequence of the lockdown in Melbourne, which has only been lifted, as the Court understands it, today, the parties were sent a notification from the Chambers of the Hearing Judge on 20 July 2021, that is a little over a week ago, indicating that the matter remained listed for hearing today at 12.00 pm AEST and that no attendance at the Court would be permitted.
Although the lockdown restrictions have been lifted nevertheless, it was indicated to the parties that the matter would be heard by way of a video-conference hearing using Microsoft Teams. The parties were also advised earlier today that if the parties were unable to use the Microsoft Teams link, that a phone number could be utilised to dial into the Courtroom. The Court has, as a consequence of the Applicant’s non-appearance, called the phone number, which the Court has on the relevant court documents for the Applicant, three times. There has been no answer to that call. The Minister, therefore, seeks that the matter be dismissed, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”).
In the circumstances, the Court is satisfied that the Applicant has been notified of the time and date for hearing and has been afforded a means to appear at hearing and that the Court has also endeavoured to contact the Applicant by other means to afford yet another means of his attendance at the hearing, all of which have been unsuccessful. In those circumstances, it is appropriate that the Judicial Review Application be dismissed, pursuant to r 13.03C(1)(c) of the FCC Rules. The Court notes that an order made in the absence of the parties may be the subject of an application to set aside, pursuant to r 16.05(2)(a) of the FCC Rules.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 July 2021
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