BZAEL v Minister for Immigration

[2014] FCCA 723

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 723

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application to proceed out of time to review decision of Refugee Review Tribunal – Applicants do not appear – application dismissed pursuant to Rule 13.03C(1)(c).

Legislation:
Migration Act 1958

Federal Circuit Court Rules 2001

First Applicant: BZAEL

Second Applicant: BZAEM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 546 of 2013

Judgment of: Judge Purdon-Sully

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Brisbane

Delivered on: 3 March 2014

REPRESENTATION

Solicitors for the First Applicant: No appearance

Solicitors for the Second Applicant: No appearance

Solicitors for the First Respondent: Clayton Utz

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. That the title of these proceedings be amended such that the words “Minister for Immigration, Multicultural Affairs and Citizenship & Anor” be deleted and the words “Minister for Immigration & Border Protection & Anor” be inserted.

2. That the Application filed 4 July 2013 be dismissed.

3. That subject to any Application being made within seven (7) days of the date of these Orders, the Applicants pay to the First Respondent the costs of and incidental to the Application filed 4 July 2013 in accordance with the Federal Circuit Court of Australia scale fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 546 of 2013

BZAEL

First Applicant

BZAEM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 4 July 2013, the Applicants, a married couple from India, sought an extension of time pursuant to section 477 of the Migration Act1958 (Cth) (“the Act”) to file an application for judicial review of a decision made by the Refugee Review Tribunal on 10 January 2013 (“the Tribunal”). That decision affirmed an earlier decision by the First Respondent refusing to grant the Applicants a protection visa pursuant to section 65 of the Act.

2. The First Respondent, by Response document filed on 25 July 2013, sought orders dismissing the application with costs on the basis that the delay in filing the application was significant and without reasonable explanation and that the granting of leave would be futile as the application for review had no reasonable prospects of success.

3. By Order of Judge Burnett of 7 August 2013, the matter was listed for final hearing on 3 March 2014.  The Order inter alia provided that the Applicants file and serve a written Outline of Submissions and any affidavits upon which they intended to rely on or before 21 days prior to the final hearing.

4. The Applicants failed to comply with that direction.  They are not present today.  Their names have been called on three occasions.  My Associate has earlier conducted a search for them on the Court floor.  He was also unsuccessful in attempting to contact them by telephone.  I was informed from the bar table by Ms Kelly, the lawyer for the First Respondent, that she has not been able to make contact with the Applicants.

5. The First Respondent’s documents, filed in accordance with the Order, was served on the Applicants at the address in Tully shown on the affidavit of the First Applicant filed on 4 July 2013.

6. When the matter came before me this morning, I stood the matter down until 2.15pm in the event that the Applicants may have been delayed.  When we resumed at 2.15pm or 2.20pm or thereabouts, their names were again called.  However, they are not present.

7. Having heard from Ms Kelly and having considered the material filed by the Applicants and by the First Respondent, I propose to dismiss the application filed on 4 July 2013. I do so under Rule 13.03C(1)(c), of the Federal Circuit Court Rules 2001.  That Rule provides that if a party to a proceeding is absent from a hearing, the court may do a number of things, including where the absent party is the Applicant, dismiss the application.

8. The basis upon which I have concluded that I should dismiss the application as opposed to adjourning the matter is because I am satisfied that the Applicants would have been aware of the hearing today.  They are shown as having appeared in person before Judge Burnett when the order was made setting the matter down for trial today and when directions for the filing of further material were made.

9. Further, in considering the appropriate course to take today, it is not irrelevant that on the evidence:

   a)firstly, the Applicants had previously been assisted by a migration agent in the preparation of their application for a protection visa;

   b)secondly, at the time they were so assisted, they refused the Tribunal’s request to give evidence and present arguments before it relating to the issues arising in their case.  Having been informed that the Tribunal was unable to make a favourable decision on the information that had been provided by them, the Applicants then informing the Tribunal in writing that they accepted that they could not meet the definition of a refugee and that the Tribunal would have no choice but to affirm the decision not to grant them a protection visa; and

   c)finally, having filed their application for review, the Applicants who, on the evidence, speak English and did not require the assistance of an interpreter in these proceedings, filed that application significantly late without explanation for the delay.

10. Whilst under Rule 13.03C(1)(e), I am able to proceed with the hearing and determine the matter, I do not propose to do so. The First Respondent did not seek that I do so in preference to dismissing the application.  She indicated in submissions that the First Respondent had no preference.  There may be a legitimate reason for the Applicants not attending court today.

11. I accordingly then, dismiss their application and I make a further order that subject to any application being made within seven days of today’s date, the Applicants pay to the First Respondent their costs of and incidental to the application fixed in accordance with this Court’s scale, fixed in the amount of $6,646.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully.

Associate:

Date:         10 April 2014