CVG15 v Minister for Immigration

[2016] FCCA 955

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 955

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – no appearance by the applicant – application dismissed for want of appearance.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: CVG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3532 of 2015

Judgment of: Judge Street

Hearing date: 26 April 2016

Date of Last Submission: 26 April 2016

Delivered at: Sydney

Delivered on: 26 April 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the First Respondent: Mr L Dennis
Minter Ellison

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 $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3532 of 2015

CVG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal on 7 December 2015 to affirm the decision of the delegate not to grant the applicant a Protection (Class XA) visa

2. On 3 March 2016 a Registrar of the Court fixed the matter for hearing today and provided the applicant with an opportunity to file an amended application and submissions and affidavit evidence.  No such documents were filed by the applicant.  On 11 March 2016 the applicant sent an email to the Court seeking to postpone the hearing and attached supporting material.  The supporting material did not identify a basis upon which the applicant would be unable to attend the hearing.  The Court did not grant the applicant’s request for an adjournment and a communication was sent by the solicitor for the first respondent identifying that there was no consent to an adjournment. 

3. The applicant has failed to appear before the Court today. The matter has been called outside the Court, both by the pseudonym and, with the benefit of a suppression order, by the applicant’s full name. The first respondent moves for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I am satisfied that the applicant was well aware of the hearing date. There has been tendered in evidence a letter from the solicitor for the first respondent dated 18 April 2016 sent to the applicant’s correct address as identified on the application foreshadowing that an application would be made to have the application dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 with costs if the applicant failed to appear.

4. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I note that this was an applicant who failed to appear before the delegate and also failed to appear before the Tribunal. The applicant is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 May 2016