BVU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1294

FEDERAL COURT OF AUSTRALIA

BVU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1294

Appeal from:

BVU17 v Minister for Immigration & Anor [2017] FCCA 2975

File number:

NSD 129 of 2018

Judge:

BURLEY J

Date of judgment:

14 August 2019

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – non-appearance of appellant at hearing – appeal dismissed

Legislation:

Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)

Migration Act 1958 (Cth) ss 36(2), 65

Cases cited:

BVU17 v Minister for Immigration & Anor [2017] FCCA 2975

Date of hearing:

14 August 2019

Registry:

New South Wales

Division:

General

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs: 

5

Counsel for the Appellant:

The Appellant did not appear at the hearing.

Counsel for the First Respondent:

Mr M. Cleary

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs.

ORDERS

NSD 129 of 2018

BETWEEN:

BVU17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	14 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed with costs.

2.Should an application be made by the appellant to set aside order (1) above made in her absence, the matter be placed in the docket of Justice Burley.

3.That the name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REVISED FROM TRANSCRIPT

BURLEY J:

1. The appellant, aged 25, is a citizen of Malaysia who arrived in Australia on 26 February 2016 as a holder of a visitor’s visa. On 20 May 2016, the appellant applied for a protection visa, claiming that she was a person to whom Australia owed protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act1958 (Cth). She claimed to fear harm from the Royal Security Forces of the Sultanate of Sulu and North Borneo if she was returned to Malaysia. On 22 June 2016, a delegate of the Minister for Immigration and Border Protection refused the application pursuant to s 65 of the Act. The appellant then applied to the Administrative Appeals Tribunal for a review of the decision, which on 31 March 2017 upheld the decision of the delegate.

2. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the Tribunal. The FCCA considered and dismissed the application in BVU17 v Minister for Immigration & Anor [2017] FCCA 2975. The appellant then filed a Notice of Appeal dated 20 December 2017 in this Court, which contains the following two grounds of review:

   (1)I was not represented by any solicitor and the Tribunal made the mistake to affirm the delegate decision despite I meet the criteria of protection visa.

   (2)The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

3. On the day before the hearing the appellant wrote to the registry of the Federal Court of Australia and the solicitors for the Minister indicating that she did not intend to proceed with his appeal, but had elected to return to Malaysia. The correspondence in this regard was tendered at the hearing. The appellant was asked to file a Notice of Discontinuance with the Court, but has not done so in the required form. In the circumstances, the listing of the hearing remained.

4. When the matter was called, perhaps unsurprisingly, the appellant did not appear. Counsel for the first respondent, Mr Cleary, submitted that in the circumstances, the appeal should be dismissed in accordance with r 36.75(1)(a)(i) of the Federal Court Rules2011 (Cth).

5. In all the circumstances, that is the appropriate order which I will make. The appellant will have an entitlement to apply to have this order set aside, as it was made in her absence.  If she does so, then I will direct that the registrar list the matter before me to avoid another judge familiarising her or himself with the file. Accordingly, the orders that I make are:

   (1)Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed with costs;

   (2)Should an application be made by the appellant to set aside order (1) above made in her absence, the matter be placed in the docket of Justice Burley;

   (3)That the name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

I certify that the preceding 5 (five) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Associate: 

Dated:       16 August 2019