BZAFG v Minister for Immigration

[2014] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1748

Catchwords:
MIGRATION – Protection visa – Refugee Review Tribunal – application for judicial review.

Legislation:  
Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a), 16.05(2)(e), 44.12

First Applicant: BZAFG

Second Applicant: BZAFH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 691 of 2013

Judgment of: Judge Howard

Hearing date: 26 March 2014

Date of Last Submission: 26 March 2014

Delivered at: Brisbane

Delivered on: 26 March 2014

REPRESENTATION

Solicitors for the First Applicant: No Appearance

Solicitors for the Second Applicant: No Appearance

Solicitors for the First Respondent: Sparke Helmore

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. That the application filed on 13 August 2013 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,326.00.

IT IS NOTED:

A.These Orders were made in the absence of the First Applicant and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules2001 the First Applicant may apply to have these Orders set aside.

B.Notation: Order 1 has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to remove the words “rule 44.12” and insert the words “rule 13.03C(1)(c)”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 691 of 2013

BZAFG

First Applicant

BZAFH
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal in relation to the applicant.  The applicant was born in India in 1983. 

2. He came to Australia, sought a protection visa, a decision was made declining that application, he sought a review of that by the Refugee Review Tribunal, that decision also went against the applicant.  He therefore filed in this Court seeking judicial review of the decision of the Refugee Review Tribunal.

3. The application was filed in this Court on 13 August 2013 and the decision that the tribunal made occurred on 15 July 2013.  The earlier decision of the delegate of the Minister had been made on 14 November 2012.

4. So the first and second applicant’s are husband and wife respectively.  The first applicant sought a protection visa. The second applicant applied as a member of his that is the first applicant’s family unit.  I note there was reference in the review decision to vague evidence regarding key parts of his claim.  In any event, the matter, as I say, came on before Judge Burnett on 11 September 2013 when an order was made for the filing of material.

5. I note that the applicant failed to file an amended application. He failed to file an affidavit and he failed to file any submissions. Indeed, his Honour Judge Burnett set the matter down for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.  The Court, on a show cause hearing, if it is not satisfied that the applicant has raised an arguable case, may dismiss the application.  Certainly noting the absence of any further grounds of review or submissions, it appears that may have been made out.

6. In any event, that applicant has failed to appear today, the first applicant.  He sent an email to the Court on the night before the hearing at 6:30pm to the Federal Court Registry email.  He states in the first email:

   “I got letter from spark helmore lawyer for I have hearing on 26 march 2014 at 10:00 am in Brisbane Qld but I have little problem with my health.  I apologise to court for I am not able to come and attend the court so I request to you, if possible to extend the hearing date and give some time so I will attend the court and proof myself. If you required my health certificate so I will show you on next hearing date or I will send by mail.

   Sorry once again for send this mail. Because I don't have any idea to court processes for extend hearing date or how to explain my health situation that's the reason to send you mail.

   However if you want to make decision without proof myself so I will accept this decision and you can send me your decision on my mail address. If you have any query you can contact me on my email Id. It's [email protected] and my mail address is: 34 whittle street, Gatton, QLD 4343, Australia.

   Note: i apologies once again and if you believe me and extend the court hearing date so please inform me by email: [email protected].

   Whatever you decided about hearing date may I request you please inform me.

   I waiting your reply as soon as possible.”

7. I note the email was sent from the applicant’s iPad to the Federal Court Registry email and he has provided, as I say, his email address.  So the applicant has referred to having a “little problem with my health”.  Unfortunately, he does not provide any medical certificate. 

8. The Court has a discretion to grant an adjournment but the Court can only exercise that discretion if there is a proper basis for doing so.  There is no evidence before the Court upon which the Court could act to grant the applicant an adjournment on health grounds.  I know he says he has only “a little” problem with his health but the Court is in the dark as to what the little problem might be. 

9. Interestingly the applicant seems somewhat accepting of the fact that the Court may well make a decision without his presence and he is correct in that assumption. There is no alternative but to dismiss the application and in that regard it will be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 that is in the default in the appearance of a party – in this case the applicant – the Court is dismissing the application with costs. Costs have been sought in a specific amount and there should be an order in that regard, and there will have to be a reference to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 because the order has been made in the absence of the applicant.

10. His email will be exhibit 1.

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

Associate: 

Date:  5 August 2014