CIJ15 v Minister for Immigration

[2016] FCCA 3374

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3374

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – no appearance – application of r.13.03C(1)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Applicant: CIJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3021 of 2015

Judgment of: Judge Street

Hearing date: 22 December 2016

Date of Last Submission: 22 December 2016

Delivered at: Sydney

Delivered on: 22 December 2016

REPRESENTATION

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison Lawyers

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 $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3021 of 2015

CIJ15

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 20 October 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant commenced proceedings in this Court on 6 November 2015. The applicant failed to appear on the return date. An order was made by a Registrar of the Court on 10 December 2015 dismissing the proceedings for want of appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

3. On 20 December 2016, the applicant filed an application in a case supported by an affidavit seeking to set aside the orders made on 10 December 2015. In the application in a case, there is a handwritten email address. 

Before this Court

1. The matter was the subject of an order dated 20 December 2016 listing the matter for hearing at 10:15am today. That order was forwarded to the email address identified on the application in a case. No appearance has been made by the applicant. The matter has been called twice outside the Court and it is now 10:30 am. The Court has made four attempts to contact the applicant on the telephone number identified on the application in a case. All four attempts have been unsuccessful.  The email that was sent to the email address on the application in a case was not the subject of any bounce-back and on the material before the Court, I am satisfied that the applicant was notified of the hearing date.

2. The first respondent has moved under r.13.03C(1)(c) of the Rules for the application to be dismissed. I note that if the applicant has a satisfactory explanation for the failure to appear at today’s hearing, it would still be open to the applicant to apply under r.16.05(2)(a) of the Rules if a satisfactory explanation can be provided, subject to the Court being satisfied that there is utility in setting aside the order by reason of the existence of a sufficiently arguable case.

3. The Court is satisfied that the order listing the matter for hearing was sent to the correct email address identified on the application. The Court is satisfied that appropriate steps have been taken to try and contact the applicant by telephone. In the circumstances of the present case, the Court concludes that the applicant was aware of the hearing date and has failed to appear. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.13.03C(1)(c) of the Rules.

4. The application is dismissed under r.13.03C(1)(c) of Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017