CAA16 v Minister for Immigration

[2017] FCCA 1091

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAA16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1091

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the applicants – improper for a person to provide contact details and prepare application in the circumstances when they are not a lawyer – Court's powers exercised under r.13.03C(l)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Cases cited:
CDC16 v Minister for Immigration& Anor [2017] FCCA 396
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

First Applicant:

Second Applicant

CAA16

CAB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1993 of 2016

Judgment of: Judge Street

Hearing date: 24 May 2017

Date of Last Submission: 24 May 2017

Delivered at: Sydney

Delivered on: 24 May 2017

REPRESENTATION

No appearance by or on behalf of the Applicants.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The Second Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

3. Direct that a copy of the reasons of the Court be sent by the First Respondent to Ms Oni Kirwin to the email address on the application once the reasons have been published.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1993 of 2016

CAA16

First Applicant

CAB16

Second 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 Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 August 2015.

2. Proceedings were commenced in this Court on 26 July 2016. On 6 October 2016, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

3. On 9 February 2017, the matter was stood over pending the determination of the application for special leave to the High Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183.

4. Following the conclusion of that special leave application, this Court made orders on 16 May 2017 listing the matter today for hearing. The matter has been called and the applicants have failed to attend. The first respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Federal Circuit Court Rules”).

5. The first respondent has tendered an email sent to the email address identified on the initiating application notifying the applicants of the hearing date. The email address and details for the applicant on the initiating process identify that the application was prepared by Ms Oni Kirwin. Ms Kirwin identified herself as a friend of the applicant. That person gave their own address and their own contact details, their own telephone number and their own email for the purpose of contacting the applicants. That was not proper conduct for Ms Ollie Kirwan to engage in, as she is not a legal practitioner. 

6. This Court has had occasion to make a similar finding in another matter, CDC16 v Minister for Immigration& Anor [2017] FCCA 396 in circumstances where again, Ms Kirwin provided her details for those of the applicant.

7. As Ms Kirwin is not a legal practitioner, it is not appropriate for her to provide her details, or contact details, or purport to represent or prepare processes in this Court or to purport to be on the record for an applicant in processes in this Court. To do so, exposes Ms Kirwin not merely to the prospect of adverse costs orders, but also to the prospect of injunctive or contempt proceedings. 

8. Counsel for the first respondent has pointed out that the proceedings in the present case were commenced before the decision of this Court was delivered in CDC16 v Minister for Immigration& Anor [2017] FCCA 396 and counsel for the first respondent only seeks an order for costs against the adult applicant.

9. If it is the case that costs have unnecessarily been incurred in the present matter due to the conduct of Ms Kirwin, the Court retains power to make appropriate orders in respect of those costs. 

10. I am satisfied on the material before the Court that the method of communication with the applicants for the purpose of contact to the applicants has been taken in respect of the proceedings. On that basis, I am satisfied that the applicants were aware of the hearing date. 

11. As the applicants have failed to appear, this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules.

12. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 August 2017