BSB18 v Minister for Home Affairs

[2019] FCCA 152

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSB18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 152

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application upon the failure of the applicant to attend.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: BSB18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 928 of 2018

Judgment of: Judge Driver

Hearing date: 29 January 2019

Delivered at: Sydney

Delivered on: 29 January 2019

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Mr S Valliappan of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 928 of 2018

BSB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me a show cause application filed on 5 April 2018.  The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 March 2018.  The Tribunal affirmed a decision of the delegate of the Minster (delegate) not to grant the applicant a protection visa. 

2. The show cause application is supported by a short affidavit filed with it. 

3. I also have before me as evidence, the court book filed on 17 May 2018 and an affidavit by Kim Mai Nguyen, made on 24 January 2019.  Ms Nguyen deposes as to service of the Minister’s submissions on the applicant on 16 January 2019.

4. There was no attendance personally by the applicant when the matter was called this morning for the scheduled show cause hearing.  The Court was, however, successful in contacting the applicant by telephone.  The applicant initially denied all knowledge of today’s hearing.  He acknowledged, however, that he had attended Court on 26 April 2018.  At that time he signed consent orders listing the matter for hearing today at 11am.  The applicant nevertheless said he had received no written notification of the hearing.  That assertion lacks credibility based on what is contained in Ms Nguyen’s affidavit.  The applicant conceded that he continues to live at his nominated residential address and that he does not check his post office box regularly.  The Minister’s submissions and covering letter were sent to both the post office box and residential address.[1]

   [1] The letter reminded the applicant of the hearing date, time and place and warned the applicant of the consequences of non attendance.

5. I told the applicant that in the circumstances I was minded to dismiss his application for non-attendance.  I did, however, give him the option of a telephone hearing.  The applicant told me that he had nothing to say in relation his judicial review application.  In the circumstances, I have concluded that the appropriate course is to dismiss the application in view of the applicant’s non-attendance, and I so order.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant, while not addressing that issue, asserted once again that he had received no notification of the hearing.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  1 February 2019