Ceq16 v Minister for Immigration and Border Protection

[2018] FCA 259

FEDERAL COURT OF AUSTRALIA

CEQ16 v Minister for Immigration and Border Protection [2018] FCA 259

Appeal from:

1           Application for extension of time: CEQ16 v Minister for Immigration and Border Protection [2017] FCCA 287

File number:

NSD 389 of 2017

Judge:

BANKS-SMITH J

Date of judgment:

7 March 2018

Catchwords:

MIGRATION – Application for extension of time to appeal – no appearance – rule 36.74 of the Federal Court Rules – applicant overseas – application dismissed

Legislation:

Federal Court Rules rr 33.22, 36.74(1)(c)

Cases cited:

CEQ16 v Minister for Immigration and Border Protection [2017] FCCA 287

MZZOV v Minister for Immigration and Border Protection [2016] FCA 599

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Date of hearing:

7 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Applicant:

The Applicant did not appear

Counsel for the First Respondent:

Ms J Strugnell

Solicitor for First Respondent:

Minter Ellison

Counsel for Second Respondent:

The Second Respondent did not appear

ORDERS

NSD 389 of 2017

BETWEEN:

CEQ16

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	7 MARCH 2018

THE COURT ORDERS THAT:

1.The application for an extension of time in which to appeal is dismissed

2.The applicant is to pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. This is an application for an extension of time in which to appeal from the decision and orders of the Federal Circuit Court of Australia. The application was filed on 21 March 2017 but its determination was adjourned pending the outcome of the High Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

2. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority made 29 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa: CEQ16 v Minister for Immigration and Border Protection [2017] FCCA 287.

3. The applicant filed an affidavit dated 21 March 2017 that did not address the reasons for delay and indicated that the proposed ground of appeal was 'jurisdictional error'.  No further explanation was provided. Directions were made by the Registrar on 28 April 2017 as to the filing of a draft notice of appeal and submissions but the applicant did not comply with those directions.

4. The applicant has not appeared today. I was shown copies of correspondence from the first respondent’s solicitors to the applicant’s identified address informing him of the date of the hearing. The Court had also taken steps to inform the applicant by email of the hearing date. I adjourned the hearing for a short period to enable the first respondent’s solicitor and an interpreter to make attempts to telephone the applicant. Following that adjournment I was told that the telephone number which the applicant had previously provided to the Court was not answered or connected.

5. The first respondent applies under r 36.74(1)(c) of the Federal Court Rules 2011 (Cth) for the application to be dismissed. The second respondent has filed a submitting appearance.

6. I am satisfied that there is the power to dismiss the application under that provision: MZZOV v Minister for Immigration and Border Protection [2016] FCA 599 [9].

7. The first respondent relies on an affidavit of Tristan Dimmock. Mr Dimmock is a solicitor representing the first respondent. He has been instructed by an officer of the Department of Immigration and Border Protection that its electronic records indicate that the applicant departed Australia on 24 July 2017. Copies of screenshots from the Department’s electronic records that support the Department’s position were annexed to the affidavit. Mr Dimmock says that based on those records there is no basis to believe that the applicant holds any visa that would permit him to re-enter the country.

8. In the circumstances of the applicant’s non-appearance today, the evidence as to his departure from Australia and absent any communications or submissions from him that elucidate the grounds of his application or proposed appeal, I consider it is appropriate that the application be dismissed. There will be an order that the applicant pay the first respondent’s costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Associate:

Dated:       8 March 2018