Cuj17 v Minister for Immigration

[2020] FCCA 2202

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2202

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – 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: CUJ17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1991 of 2017

Judgment of: Judge Nicholls

Hearing date: 6 May 2020

Date of Last Submission: 6 May 2020

Delivered at: Sydney

Delivered on: 6 May 2020

REPRESENTATION

Applicant: No appearance

Representative for the Respondents: Ms J. Strugnell

Solicitors for the Respondents: Minter Ellison

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 23 June 2017 is dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules (2001) (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $5600.

THE COURT NOTES:

1. The existence of Rule 16.05 of the Federal Circuit Court Rules (2001) (Cth). Rule 16.05(2)(a) is in the following terms: “The Court or a Registrar may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1991 of 2017

CUJ17

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 23 June 2017, seeking review of the decision of the Administrative Appeals Tribunal made on 23 March 2017, which found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. In evidence before the Court, is the affidavit of Mr Liam Dennis, solicitor, made on 14 February 2020, with annexure, email correspondence between the Court administration and the parties dated 16 April 2020, tendered by the Minister, (“RE1”), and email correspondence between the Minister’s solicitors and the applicant dated 5 May 2020 (“RE2”).

3. At the commencement of the hearing, there was no appearance by or on behalf of the applicant. The Minister asked that the application be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

4. Exhibit “RE1” is email correspondence dated 16 April 2020, and a letter of the same date. The email correspondence was sent from my Chambers to the Minister’s solicitor and the applicant. The email was in the following terms:

   “…Please be advised that this matter has been set down for hearing at 10:15am on Wednesday 6 May 2020 before Judge Nicholls.

   The hearing will proceed by “GlobalMeet” telephone conferencing. Please find the instructions to attend the hearing below

   …

   Please find attached a letter sent by express post to the applicant at their address for service, advising them of this listing and proving the instructions to appear at the hearing by telephone…”

5. Exhibit “RE2” is email correspondence dated 5 May 2020 between an employee of the Minister’s solicitors and the applicant. The email was in the following terms: “…Please find attached, a copy of our letter dated 5 May 2020 with enclosures…”. The enclosures included a letter dated 5 May 2020 addressed to the applicant it stated:

   “…We enclose, a copy of the Courts email and letter dated 16 April 2020.

   This matter is listed before the Court on 6 May 2020 at 10:15am by telephone. Please use the instructions provided by the Court in its letter to connect to the hearing.

   If you do not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under paragraph 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) with costs…”

6. I note that the affidavit of Mr Dennis reveals that the applicant departed Australia on 18 March 2018. The Minister submitted, and as revealed by the evidence before the Court, that, as at the date of Mr Dennis’s affidavit the applicant did not have a visa that would permit him to re-enter Australia.

7. The Minister submitted that the Court should be satisfied that the applicant had reasonable notice of today’s Court event, noting the correspondence that was sent to him to the address for service provided by the applicant (see “RE1” and “RE2”), which put the applicant on notice of today’s hearing.

8. The Minister further submitted that despite the applicant’s departure from Australia he would still have access to the email address, provided by the applicant in his application to the Court, to which “RE1” and “RE2” were sent and presumably would have access to a telephone to connect to the hearing if he wished to do so.

9. The Minister’s solicitor confirmed that they had not received a response to “RE2”. I note, that the Court has not received a response to “RE1”.

10. I am satisfied, having regard to the evidence, that the applicant had reasonable notice of the Court event today.  I also take into account that the applicant’s attendance, could have been by telephone. When the matter was called there was no appearance by, or on behalf of the applicant. This may be explained by the applicant’s departure from Australia in 2018, in circumstances where it is reasonable to draw the inference that the applicant has sought to abandon his application to the Court and/or not seek to press prosecution of it.

11. I am satisfied, having regard to the documents marked “RE1” and “RE2”, that the applicant was given reasonable notice of the Court event, and, for whatever reason, possibly consistent with the inference to which I referred to earlier, has not appeared.

12. There has been no response by the applicant either by way of email, which would have been available to him, to reply in response to the communications of “RE1” and/or “RE2” to indicate, for example, some application for an adjournment of the hearing or some other matter.  There has been no response by the applicant, and, importantly and relevantly, there has been no attendance by the applicant.

13. I am satisfied that I should make the order that the Minister seeks. I will make the order accordingly.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 10 August 2020