CPC16 v Minister for Immigration

[2020] FCCA 2308

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPC16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2308

Catchwords:
MIGRATION – Substantive application seeking review of the decision of the Administrative Appeals Tribunal – application to reinstate – no appearance by or on behalf of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: CPC16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2483 of 2016

Judgment of: Judge Nicholls

Hearing date: 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Sydney

Delivered on: 26 March 2020

REPRESENTATION

Applicant: No appearance

Representative for the Respondents: Ms K. Evans

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application in a case made on 7 February 2020 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2483 of 2016

CPC16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 14 September 2016, and amended on 16 February 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 August 2016 which set aside the decision of the Minister’s delegate to refuse the grant of a Class XA protection visa, and substituted a decision to refuse the grant of a Class XD protection visa to the applicant.

2. The evidence before the Court is contained in a bundle of documents tendered by the Minister (“RE1”). RE1 includes email correspondence dated 17 March 2020 between the Court’s registry and the parties, and correspondence between my chambers and the parties dated 19 March 2020, 20 March 2020 and 23 March 2020.

3. The substantive application in this matter was initially set down for final hearing on 29 January 2020. On that day there was no appearance by or on behalf of the applicant, and the matter was dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. On 7 February 2020, the applicant filed an Application in a Case to reinstate the matter. The Court’s registry wrote to the parties by email sent to the respective, and relevant, email addresses on 4 March 2020 to inform them that the hearing of the Application in a Case was set down for today, 26 March 2020.

5. When the matter was called today, there was no appearance by, or on behalf of, the applicant. The Minister sought that the application [that is the Application in a Case] to the Court be dismissed pursuant to Rule 13.03C(1)(c) of the Rules, because of the applicant’s unexplained non-attendance.

6. I am satisfied on the basis of the communications contained in RE1 that the applicant had reasonable notice of the Court event today. For whatever reason the applicant has elected not to respond to communication from the Court.

7. The applicant had the opportunity to attend by telephone. Given current COVID-19 difficulties this is what was proposed in the emails sent to him. A process was set in place to facilitate, through the use of the services of the interpreter, his attendance by telephone. 

8. If there was some difficulty in him appearing the applicant had a reasonable opportunity to communicate that by email to the Court, before the time and date of the hearing of the Application in a Case. 

9. I do take into account that the interpreter, with the assistance of the administrative person who is responsible for the telephone link, attempted to contact the applicant on the mobile telephone number that he had provided to the Court. The applicant did not answer the phone.

10. Based on the email communications sent to the applicant it is reasonable to infer that the applicant was aware that an attempt would be made to contact him by telephone today. I am satisfied that the applicant has, for whatever reason, elected not to appear by telephone, and has elected not to explain any inability to attend by telephone which he could have done by way of email communication.

11. It is appropriate in all the circumstances that the Application in a Case be dismissed for non-attendance.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 20 August 2020