BTC15 v Minister for Immigration

[2017] FCCA 1212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTC15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1212

Catchwords:
MIGRATION – Judicial Review – no appearance by or for the applicant – application dismissed.

Legislation:

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

Applicant: BTC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: THOMAS MARWICK, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 49 of 2015

Judgment of: Judge Young

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Darwin

Delivered on: 1 June 2017

REPRESENTATION

No appearance by or for the Applicant

Counsel for the Respondents: Ms Gallagher

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 31 August 2015 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $5,210.00.

NOTATION: The matter was called outside the courtroom in Sydney, and outside the courtroom in Darwin, and the applicant was telephoned on the numbers provided in the notice of address for service filed 5 September 2016 and amended application filed 14 February 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 49 of 2015

BTC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

THOMAS MARWICK, THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The applicant has not appeared, either in Darwin or in the courtroom at Sydney where we are connected by video.  My deputy associate has telephoned the number provided on the applicant’s amended application filed on 14 February 2017 and she also telephoned the numbers appearing on the applicant’s address for service filed on 5 September 2016.  The notice of address for service has a handwritten telephone number which is not entirely legible, but the last three digits of that number could be interpreted as 518 or 578.  In any event, my deputy associate called the number using both those combinations and there was no answer in either case.

3. Ms Gallagher, as counsel for the respondent, has pointed out something that I had overlooked in the application, which is that at order 1 in the final orders sought by the applicant, it is said that:

   The Federal Circuit Court to adjourn my case pending the outcome of the current High Court of Australia matter S20/2017.

4. Ms Gallagher has told me that she understands that to be a reference to a special leave application which has not yet been determined by the High Court. Ms Gallagher briefly explained what she understood was the nature of the appeal, being a finding, under an international treaty obligation assessment that the data breach would not be considered to engage Australia non-refoulement obligations because that issue would be determined by the AAT which had not yet made its own decision. The decision appeared to concern a dismissal of a challenge to an ITOA decision on quite a narrow procedural ground which does not appear to have any relevance, as far as I can see, to this application. In any event, the applicant has not appeared. I am satisfied her non-appearance is unexplained and accordingly I propose, on the application of the respondent, to dismiss the application pursuant to rule 13.03C(1)(c).

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

Associate: 

Date:  7 June 2017