BRX15 v Minister for Immigration

[2015] FCCA 3028

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3028

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Legislation:

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

Migration Act 1958 (Cth), s.476

Applicant: BRX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2304 of 2015

Judgment of: Judge Street

Hearing date: 11 November 2015

Date of Last Submission: 11 November 2015

Delivered at: Sydney

Delivered on: 11 November 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr D. McLaren
Minter Ellison

ORDERS

1. The matter be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2304 of 2015

BRX15

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 in respect of a decision the Tribunal made on 20 July 2015, reviewing a decision of the delegate not to grant the applicant a protection visa. 

2. On 1 October 2015, a Registrar of this Court fixed the matter for hearing at 10.15 am today. The applicant has not appeared. The first respondent moves under r.13.03C(1)(c) for the application to be dismissed. The first respondent has tendered an email sent to the email address of the applicant as identified on the first court date form completed and signed by the applicant.

3. The letter enclosed from submissions of the first respondent as foreshadowing that if the applicant did not appear on the hearing date, the first respondent may apply to have the matter dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

4. I am satisfied that the applicant was well aware of the hearing date and this is a matter where the grounds of the application assert without any particulars the decision of the Tribunal being affected by jurisdictional error and allege the Tribunal did not comply with its obligation to put adverse information relied on to the applicant.

5. Those grounds are surprising in the context in which the applicant failed to attend an interview before the delegate on 21 August 2014 and where the applicant was sent an invitation to appear at the hearing on 20 July 2015 before the Tribunal. That invitation to appear dated 23 June 2015 was sent to the post office address identified on the application for review.  No response to that invitation was received from the applicant and the applicant did not appear on the hearing date and the Tribunal noted that it also sent SMS messages to the applicant prior to the hearing. 

6. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.13.03C.  The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 12 November 2015