CFW15 v Minister for Immigration

[2016] FCCA 1290

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1290

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – applicant failed to appear – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), ss.476, 494B, 494C

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

Applicant: CFW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2919 of 2015

Judgment of: Judge Street

Hearing date: 30 May 2016

Date of Last Submission: 30 May 2016

Delivered at: Sydney

Delivered on: 30 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Mr D McLaren
Minter Ellison

ORDERS

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

2. The applicant pay the costs of the first respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2919 of 2015

CFW15

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) in respect of a decision that the Tribunal made on 21 March 2012 affirming a decision by the delegate not to grant the applicant a Protection (Class XA) visa. On 23 February 2016, the Court made orders fixing the matter for hearing by consent on today’s date at 9.30 am. The matter has been called outside the Court both by the pseudonym and, with a suppression order, the applicant’s full name. The applicant has not appeared and it is now past 10.30 am.

2. The solicitor for 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 Court has had tendered a copy of an email sent to the applicant’s email address as identified on the application consistent with the methods of communication identified in s.494B of the Migration Act 1958 to the applicant’s email address enclosing the first respondent’s submissions and foreshadowing that the Minister may apply to have the matter dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001with costs if the applicant fails to appear.

3. Under s.494C of the Migration Act 1958, the applicant is taken to have received the email communication at the end of the day on which it was transmitted. The Court also endeavoured to contact the applicant on the mobile telephone number identified on the application. Two calls were made to that number and there was no answer. The Court is satisfied that the applicant was aware of the hearing date. The Court is satisfied that this is an appropriate matter in which to exercise the discretion under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

4. In these circumstances, the application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 June 2016