CBT15 v Minister for Immigration

[2019] FCCA 1619

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBT15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1619

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the applicants – appropriate matter for the Court to exercise powers under r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), s.476

Applicant: CBT15

Second Applicant: CBU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2765 of 2015

Judgment of: Judge Street

Hearing date: 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Sydney

Delivered on: 12 June 2019

REPRESENTATION

No appearance by or on behalf of the applicants.

Solicitors for the Respondents: Ms J Noakesmith
DLA Piper

ORDERS

1. Grant leave to the first respondent to file in Court the affidavit of Stefanie Giourgas of 6 June 2019.

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

3. The applicant pay the first respondent’s costs fixed in the amount of $3,750.00.

DATE OF ORDER: 12 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2765 of 2015

CBT15

First Applicant

CBU15

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 September 2015 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas.

2. The proceedings in this Court were commenced on 12 October 2015. On 19 November 2015, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

3. On 29 October 2018, a Judge of the Court made orders giving the applicants a further opportunity to file any amended application, affidavit evidence and submissions. No such documents were filed.

4. On 17 January 2019, this Court made orders fixing the matter for hearing today and granting liberty to apply. On 17 April 2019, the applicants filed a notice of address for service in respect of a change of address which identified both an address for service and an email address.

5. The matter has been called and the applicants have failed to appear. The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

6. The first respondent has read an affidavit in support that identifies the sending of a letter to the residential address identified by the applicants on 4 June 2019 reminding the applicants of the hearing date and foreshadowing an application to have the proceedings dismissed with costs if the applicants failed to appear. The evidence also identifies the sending of that communication to the email address provided by the applicants in the changed address for service filed on 17 April 2019.

7. On the evidence before the Court, the Court is satisfied that the applicants were aware of the hearing date. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under rurle 13.03C(1)(c) of the Federal Circuit Court Rules.

8. Accordingly, the application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2019