CTS18 v Minister for Immigration

[2020] FCCA 2289

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTS18 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2289

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicants – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

First Applicant: CTS18

Second Applicant: CUA18

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

Second Respondent: ADMINISTRATIVE APEALS TRIBUNAL

File Number: SYG 1487 of 2018

Judgment of: Judge Nicholls

Hearing date: 6 August 2020

Date of Last Submission: 6 August 2020

Delivered at: Sydney

Delivered on: 6 August 2020

REPRESENTATION

Applicant: No appearance

Representative for the Respondents: Ms P. Durham

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 28 May 2018 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants pay the first respondent’s costs set in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1487 of 2018

CTS18

First Applicant

CUA18

Second 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) (“the Act”) on 28 May 2018 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 April 2018 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants (“the visas”).

2. The evidence before the Court is contained in a bundle of relevant documents filed, and tendered, by the Minister (Court Book – “CB” – “RE 1”), email correspondence between my chambers and the parties, “RE2”, and correspondence between the Minister’s solicitors and the applicants, “RE3”. RE2 and RE3 were both also tendered by the Minister.

3. RE2 is a copy of an email dated 27 July 2020 between my chambers and the parties. It relevantly stated:

   “…Please be advised that due to recent COVID-19 developments, the hearing listed at 10:15am on Thursday 6 August 2020 will proceed by telephone. 

   Please follow the instructions below to attend by “Global Meet” telephone conferencing:

   1. The parties will be required to call this number at 10:15am on 6 August 2020:…

   2. The parties will then be prompted to enter the ‘guest passcode’ to join the telephone conference:…

   A Mandarin interpreter has been arranged to assist the applicants at the hearing. The interpreter will contact the applicants in the morning, prior to the hearing start time, to explain the above instructions...”

   [Underlining Removed.]

4. RE3, is correspondence between the Minister’s solicitors and the applicants dated 30 July 2020. It relevantly stated:

   “…

   This matter is listed for hearing on 6 August 2020 at 10:15 am before Judge Nicholls at the Federal Circuit Court of Australia by teleconference.

   If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.”

5. At today’s hearing, the Minister was represented by a solicitor. An interpreter in the Mandarin language was present in Court.

6. When the matter was called, there was no appearance by, or on behalf of, the applicants. The interpreter confirmed before the Court that she attempted to call the applicants to further explain the instructions to attend the hearing by the telephone conference facility. However, her attempt was unsuccessful. The interpreter confirmed to the Court that the number she called was the telephone number the applicants provided in their originating application to the Court.

7. In circumstances where there was no appearance by, or on behalf of, the applicants the Minister’s solicitor requested that the matter be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth)

8. The application to the Court was made on 28 May 2018. On 21 June 2018, a Registrar of this Court made orders, by consent, giving the applicants the opportunity to file any amended application, and any evidence by way of affidavit.

9. Orders made by the Court on 3 June 2020, also gave the applicants the opportunity to file written submissions. As of today’s date, nothing has been filed by the applicants. Nor has the Court, or the Court’s Registry to the best of my knowledge, otherwise heard from the applicants. 

10. I did consider whether there was any utility in adjourning the hearing to another day to provide the applicant with another opportunity to attend.

11. From the evidence before the Court the first applicant is a citizen of China, who arrived in Australia in October 2014 as the bearer of a visitor’s visa (CB 15). He applied for the protection visa on 17 December 2014 (CB 1).

12. The second applicant is his daughter.  She was born in 1997 (CB 51). She arrived in Australia as the bearer of a student visa, which was subsequently cancelled (CB 112). She was added to her father’s application in June 2015 (CB 76 and CB 111). She made no claims to protection in her own right (CB 69–CB 71). She, in fact, applied as a dependent member of his family.

13. While both applicants were invited to attend an interview before the delegate, and then subsequently a hearing before the Tribunal, the second applicant indicated that she would not attend the Tribunal hearing (CB 156). 

14. In short, while having made the application to the Court, the first applicant, other than providing consent to orders made by the Registrar, appears not to have taken steps to avail himself of the opportunities provided to prosecute his application.  As to the second applicant, she appears to have been passive before the delegate, and before the Tribunal in promoting or in pursuing her application for the visa. Nothing has been heard from her in the current proceedings.

15. Before the Tribunal, by the time of the Tribunal’s invitation to hearing, the second applicant was an adult, and was an adult at the time of the application to the Court.

16. I am satisfied on the evidence that the applicants have had reasonable notice of the Court event today.  I am satisfied that a reasonable attempt was made to contact the applicants. The information provided to the applicants as to how to participate in the hearing was consistent with current COVID-19 protocols. I am satisfied that the applicants have not made themselves available as had been required of them to be able to participate in the hearing.

17. I am further satisfied, therefore, that neither of the applicants has attended the hearing. In all the circumstances, given that there is no application for any adjournment from the applicants, nor any other indication of any difficulty in attending today, I am satisfied that the order sought by the Minister should be made.  I will make that order. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 19 August 2020