BYJ17 v Minister for Immigration

[2020] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2212

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: BYJ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1376 of 2017

Judgment of: Judge Nicholls

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Sydney

Delivered on: 18 June 2020

REPRESENTATION

Applicant: In person

Representative for the Respondents: Ms A. Zinn

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 3 May 2017 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3606.

4. Within 7 days of the making of these orders the first respondent’s solicitors to write to the applicant by letter sent by express post to the address for service provided by the applicant and by email to the email address provided by the applicant to notify him of the orders made today, and of Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1376 of 2017

BYJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 3 May 2017 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act. That application seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 March 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant a protection visa (“the visa”) to the applicant.

2. In evidence before the Court is a bundle of relevant documents tendered by the Minister, which includes correspondence between the Minister’s solicitor and the applicant, (“RE1”).

3. I note, one of the documents included in “RE1” was an email between the Minister’s solicitors and the applicant, dated 17 June 2020. It is in the following terms:

   “…We refer to the above matter which is listed for hearing of the application for an extension of time at 10:15am tomorrow, 18 June 2020 before the Honourable Judge Nicholls.

   To assist you with your preparation for the hearing, we attach a further copy of the following documents:

   1.The Minister’s submissions sent to you by email on 10 June 2020, and

   2.The court book sent to you by post on 8 September 2017.

   You are required to attend the scheduled hearing and if there is no appearance, the first respondent may without further notice seek orders that your application be dismissed with costs…”

4. The application for the extension of time was set down for hearing at 10.15am this morning [18 June 2020]. Based on the evidence before the Court, I am satisfied that the applicant has had reasonable notice of the Court event today. 

5. I have also had regard to email correspondence from the Court to the applicant, seeking to facilitate the applicant’s appearance. The applicant has not responded to these emails.

6. I am satisfied on the evidence, that the applicant had reasonable notice of the Court event today. There has been nothing heard from the applicant, or anyone on the applicant’s behalf, about any difficulty in attending.  Nor, am I aware of any application for an adjournment of the hearing today. 

7. Two attempts were made this morning to contact the applicant by way of telephone, using the telephone number provided by the applicant with his application. Those attempts to contact the applicant with an interpreter in the Malay language have been unsuccessful.

8. When the matter was called, there was no appearance by or on behalf of the applicant, and as noted above, nothing has been otherwise heard from the applicant. In the circumstances, the Minister has asked that the matter be dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

9. I am satisfied that the applicant has had reasonable notice of the Court event today, has not sought any adjournment or otherwise sought to explain any difficulty in attending. 

10. I find that when the matter was called, there was no appearance by or on behalf of the applicant. Therefore, I am satisfied that the order dismissing the application sought by the Minister should be made. I will make that order. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 11 August 2020