CHH17 v Minister for Immigration

[2017] FCCA 3230

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHH17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3230

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

Legislation:

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

Migration Act 1958 (Cth), s.476

Applicant: CHH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1652 of 2017

Judgment of: Judge Street

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Sydney

Delivered on: 14 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents:

Ms A Zinn

Mills Oakley Lawyers

ORDERS

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

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2017

CHH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 24 April 2014 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The proceedings were commenced on 29 May 2017. On 23 June 2017, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application and affidavit evidence.  No such documents have been filed.

3. On 26 October 2017, this Court fixed the matter for hearing today. The matter has been called outside the Court and the applicant has 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 Rules 2001 (“the Rules”).

4. The first respondent has tendered a copy of a letter sent to the applicant’s address that was returned “not delivered”, as well as an email sent to the applicant’s email address identified on the originating application dated 26 October 2017, notifying the applicant of the hearing date and attaching a copy of the orders made by the Court. The first respondent has also tendered a copy of an email dated 11 December 2017 sent to the applicant’s email address, reminding the applicant of the hearing date and foreshadowing an application to have the proceedings dismissed if the applicant failed to appear.

5. The Court also endeavoured to contact the applicant on the telephone number identified on the originating application without success. I am satisfied that the applicant was aware of the hearing date. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) the Rules.

6. Accordingly, the application is dismissed under r 13.03C(1)(c) of the Rules. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2018