CDC16 v Minister for Immigration

[2017] FCCA 396

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 396

Catchwords:
MIGRATION – No appearance by the applicant – 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(1)(c) – application dismissed.

Legislation:

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

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

Applicant: CDC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2060 of 2016

Judgment of: Judge Street

Hearing date: 3 March 2017

Date of Last Submission: 3 March 2017

Delivered at: Sydney

Delivered on: 3 March 2017

REPRESENTATION

No appearance by the Applicant.

Solicitors for the Respondents:

Mr T Shaw

Clayton Utz

ORDERS

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

2. Direct that a copy of the reasons of the Court be sent by the First Respondent to Ms Oni Kirwan to the email address on the application.

3. The Applicants pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2060 of 2016

CDC16

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 26 March 2016. The application to this Court was filed 94 days after the expiry of the 35 day period for the bringing of proceedings in this Court. The application accordingly, is one seeking an extension of time under s.477 of the Act.

2. That application was filed on 2 August 2016.  The applicant provided on the application the details identifying the application was prepared by Ms Oni Kirwan who is described as a friend of the applicant. That person is not a lawyer and it was entirely inappropriate for that person to either prepare the document or put their name on the document as a source of the applicant’s address. Ms Oni Kirwan provided her residential address and her email address and her telephone numbers.  Ms Oni Kirwan allegedly belongs to some charitable body. It was entirely improper for Ms Oni Kirwan to complete the form and provide details of her contact address and telephone numbers rather than that of the applicants.

3. While Ms Oni Kirwan may believe she is in some way assisting the applicants, in the present case, orders were made fixing the matter for hearing today by a Registrar on 20 October 2016 and the applicants have not attended. The Court has endeavoured to telephone the applicants on the numbers provided to ascertain whether they are proposing to attend and ascertain any explanation for their failure to be here at Court. Ms Oni Kirwan answered the phone and indicated that the documents had been sent to the applicants and conveyed that she anticipated that they would have come to Court.

4. The Court raised with Ms Oni Kirwan that it was entirely inappropriate for her to be providing her telephone number and contact details on the originating application in circumstances where she was not a lawyer. Ms Oni Kirwan suggested that she did so because she belonged to a charitable body. It would be entirely inappropriate for a charitable body to provide its contact details rather than that of the applicants on the originating application. The steps taken by Ms Oni Kirwan in the present case and the alleged charitable body to which Ms Oni Kirwan allegedly belongs have put the Court and the applicants in a position where the Court cannot ascertain by telephone where the applicants are or whether there is a legitimate explanation for their failure to appear in Court. 

5. By providing the contact details that Ms Oni Kirwan has on the originating application, if it turns out to be her communications that have caused the applicants and the first respondent to incur costs, Ms Oni Kirwan is exposing herself to the court making costs orders against her personally. It is not appropriate for Ms Oni Kirwan to continue to purport to represent applicants with her contact details on the originating process in relation to visas being sought under the Act or in respect of any proceedings in this Court. Only a lawyer may do so. I will direct that a copy of the reasons of this court be sent to the email address of Ms Oni Kirwan, so that she is on notice of the prospect of adverse costs orders if she continues to provide her contact details for those of applicants. Further, if the Court were to find that Ms Oni Kirwan was the author of the prelix grounds in the application, she is also at risk of an adverse costs order if the grounds are found to be an abuse of process.

6. The first respondent has moved for the proceedings to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The first respondent has tendered an email, which has been marked Exhibit A, sent to the email address provided by the applicant on the application. That email address happens to be the email address of Ms Oni Kirwan.  Nonetheless, that is the email address that the applicants provided.  The first respondent was correct to forward the email to the email address provided by the applicant on the application. I am satisfied that the applicants were aware of the matter being listed for hearing today. 

7. I am satisfied that 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 2001. 

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

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

Date: 8 March 2017