BYF15 v Minister for Immigration

[2015] FCCA 3240

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3240

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

First Applicant: BYF15

Second Applicant: BYG15

Third Applicant: BYH15

Fourth Applicant: BYI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2604 of 2015

Judgment of: Judge Street

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Sydney

Delivered on: 4 December 2015

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the First Respondent: Ms M Stone
DLA Piper

ORDERS

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

2. The First and Second Applicants pay the First Respondents costs fixed in the amount of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2604 of 2015

BYF15

First Applicant

BYG15

Second Applicant

BYH15

Third Applicant

BYI15

Fourth 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 within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 August 2015 affirming a decision of the delegate not to grant the applicants a protection visa.

2. On 5 November 2015, the matter was fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The matter has been called and the applicants have not appeared.  The solicitor for the respondent received a report from a Dr Haasbroek dated 3 December 2015 which made reference to character matters concerning the applicants and depression being suffered by the second applicant. 

3. No opinion was expressed as to an inability of the applicants to attend the hearing today.  No application for adjournment was foreshadowed or made to the first respondent.  The first respondent has read an affidavit of service of the submissions of the first respondent that was sent to the correct address as identified on the application. This included a letter foreshadowing that the matter may be the subject of an application to dismiss the proceedings for non-appearance if the applicants fail to attend.  I am satisfied that the applicants were well aware of the hearing date for the show cause hearing and that there is no proper explanation for their failure to appear.

4. The doctor’s report does not identify any proper ground upon which an adjournment should be granted, and there is no explanation for the absence of the applicants. The first respondent has moved for dismissal under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I am satisfied that this is an appropriate matter to exercise the Court’s powers under r.13.03C(1)(c).

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

Associate: 

Date: 9 December 2015