BXW15 v Minister for Immigration
[2017] FCCA 1110
•23 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1110 |
| Catchwords: PRACTICE AND PROCEDURE – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Act 1958(Cth), ss.412, 494B, 494C Migration Regulations 1994 (Cth), reg.4.31 |
| Cases cited: Bui v Minister for Immigration & Anor [2015] FCCA 1931 |
| Applicant: | BXW15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2584 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 May 2017 |
| Date of Last Submission: | 23 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2017 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Solicitors for the Respondent: | Andrew Keevers (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2584 of 2015
| BXW15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 21 September 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.
The solicitor for the first respondent, Mr Keevers, informed the court that he had rung the applicant on her mobile telephone number to inform her that the matter was on for hearing this morning at about 10.15 am, and the applicant responded that she was at Hurstville.
The applicant did not in terms apply for an adjournment of today’s hearing. However, in light of the contact made with the applicant and having regard to her poor English, I am prepared to accept her communication with Mr Keevers this morning as a request for an adjournment. If the request for adjournment is refused, then the application would be dismissed pursuant to r.13.03C(1)(c) of the Rules by reason of the applicant’s failure to attend this morning.
When the matter was commenced, the applicant was legally represented. However, a Notice of Withdrawal was filed on 14 October 2016 by her then lawyers, Parish Patience Immigration Lawyers. That Notice identified the applicant’s last known residential address as Unit 10, Ground Floor, Building A, 1B Pearl Street, Hurstville. It also provided an email address and a mobile telephone number. The mobile telephone number provided in that Notice was the telephone number from which Mr Keevers made contact with the applicant this morning.
Mr Keevers tendered a letter dated 16 May 2017 to the applicant from the solicitor for the first respondent, addressed to the applicant’s address for service in Australia. That letter enclosed by way of service a copy of the first respondent’s submissions and advised the applicant that the matter was listed for hearing today at 10.15am before me and provided the address of the Court. That letter also informed the applicant that if the applicant did not attend, the respondent would seek orders from the Court that her matter be dismissed with costs.
The directions made by the Court on 27 October 2015 set the matter down for hearing today at 10.15am. There has been no appearance by the applicant and no communication received from the applicant by the Court seeking an adjournment of today’s hearing or for any other reason. However, if the applicant’s communication with Mr Keevers could be taken as a request for adjournment, that request is opposed by the first respondent on the grounds of utility as the applicant’s application has no reasonable prospect of success.
For the following reasons, I agree with Mr Keevers’ submissions and the adjournment application should be refused and the matter should be dismissed pursuant to r.13.03C(1)(c) of the Rules by reason of the applicant’s non-attendance.
The applicant is a 35 year old female and a citizen of Nepal. On 27 June 2014, the applicant lodged an application for a protection visa. On 13 February 2015, pursuant to s.66 of the Migration Act 1958 (Cth) (“the Act”), a delegate of the first respondent (“the Delegate”) wrote to the applicant notifying her of the decision to refuse the grant of a protection visa. That letter was sent to the address identified by the applicant to the Department of Immigration and Border Protection (“the Department”).
On 10 March 2015, that letter was returned to the Department marked return to sender.
Under the relevant deeming provisions of ss.494B and 494C of the Act, the applicant is taken to have been notified of the Delegate’s decision on 24 February 2015. Pursuant to s.412 of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”), the last date for the applicant to seek review of the Delegate’s decision by the Administrative Appeals Tribunal (“the Tribunal”) was 24 March 2015. The applicant lodged an application for review by the Tribunal on 22 May 2015.
On 1 June 2015, the Tribunal wrote to the applicant inviting her to comment on the validity of her application, having regard to the mandatory time limits under the Act and the Regulations. The applicant was granted a number of extensions of time to respond to that invitation. Ultimately, the applicant’s migration agent responded on 17 August 2015, stating that the Department was aware on 10 March 2015 that the applicant had not been notified of the Delegate’s decision because the notification letter was returned to it. The Tribunal was referred to the case Bui v Minister for Immigration & Anor [2015] FCCA 1931 (“Bui”).
The submission made by the applicant’s migration agent, supported by Bui, was that the applicant was not aware of the Department’s decision, and the Department was aware of that within the prescribed time limit in which the applicant must lodge her application for review by the Tribunal. The applicant’s migration agent further submitted that the Department should have taken steps to attempt to communicate with the applicant to bring the Delegate’s decision to her attention in order to allow her to take appropriate actions prior to the expiration of mandatory time limit for the lodgement of an application for review by the Tribunal. The applicant’s migration agent submitted that in failing to do so, the Department denied the applicant her right to appeal.
In Bui, the applicant had provided a new email address as her address for contact. However, the Department had communicated with her at the old email address. There is no such similar circumstance in the present case.
Mr Keevers tendered a bundle of relevant documents filed on 5 November 2015 which is marked Exhibit 1R. On the evidence before me, the Department notified the applicant of the Delegate’s decision at the last known address of the applicant on 13 February 2015. There was no suggestion of any new contact details provided by the applicant to the Department as was the case in Bui.
The Department communicated with the applicant in accordance with s.494B(4) of the Act by dispatching via prepaid post within three working days of the date of the Delegate’s decision to the last address for service provided to the Department by the applicant. In those circumstances, pursuant to s.494C of the Act, the applicant is taken to have been notified of the Delegate’s decision on 24 February 2015.
In the circumstances, it would appear that the deeming provisions of s.494C of the Act would operate with the effect that the applicant’s application for review by the Tribunal was required to be lodged by 24 March 2015. As stated above, it was not lodged until 22 May 2015.
The Tribunal in its decision record recounted the history of the matter in detail. The Tribunal ultimately concluded that it did not have jurisdiction to consider the applicant’s application for review given that the applicant had failed to comply with the mandatory time limit in s.412(1)(b) of the Act and reg.4.31(2) of the regulations.
The Tribunal considered the applicant’s migration agent’s response dated 17 August 2015 and the reference in that letter to the decision of Bui. However, the Tribunal found that there was no indication that the applicant provided a new address for correspondence to the Department prior to the Delegate’s decision being sent, as had been the case in Bui.
The Tribunal found that the Department had complied with the legislative regime in notifying the applicant of its decision and concluded that it had no jurisdiction.
The Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.
The ground of the initiating application filed on 21 September 2015 simply restated the same issue as was raised in the applicant’s migration agent’s letter of 17 August 2015.
It would appear that the Tribunal was correct in distinguishing Bui for the reasons that it gave. In the circumstances, there was no duty imposed on the Department to make any further attempt to notify the applicant of the Delegate’s decision.
The ground of the application would appear to have little or no prospect of success, and certainly insufficient prospects of success to justify an adjournment of today’s hearing.
Whilst I make no final determination as to whether or not the Tribunal’s decision was affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record or in the conduct of its review.
In the circumstances, if it be the fact that the applicant was intending to seek an adjournment of today’s hearing, such an application is refused.
Otherwise, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.
I am satisfied that the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 21 September 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 29 May 2017
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