CWW17 v Minister for Immigration - [2018] FCCA 582

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWW17 v MINISTER FOR IMMIGRATION

[2018] FCCA 582

Catchwords:
MIGRATION – Application for judicial review of decision not to refer application for the exercise of the power conferred by s.48B of the Migration Act 1958 (Cth) (Act) to dispense with s.48A of the Act – whether decision not to refer is a “migration decision” within the meaning of s.476 of the Act – decision not a “migration decision” and, for that reason, the Court has no jurisdiction to determine application for judicial review of the decision.

Legislation:

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

Migration Act 1958 (Cth), ss.48A, 48B, 474, 474A, 476, 477

Cases cited:

AOA16 v Minister for Immigration and Border Protection [2017] FCA 6973

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

Applicant:

CWW17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2058 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

22 February 2018

Date of Last Submission:

22 February 2018

Delivered at:

Sydney

Delivered on:

22 February 2018

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent:

Mr C Robertson of DLA Piper Australia

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2058 of 2017

CWW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court is an application purportedly pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the time provided for by s.477(1) of the Act for making an application for the granting of a remedy under s.476 of the Act. The application is directed to a decision (Decision) that was communicated to the applicant in a letter dated 6 April 2017 from the Department of Immigration and Border Protection (Department).
The matter came before a Registrar on 28 September 2017 on a first court date. On that day the Registrar made directions and ordered that the matter be listed for hearing as to the competency of the application before me on 22 February 2018 at 10.15 am, that is to say, today. At around 10.15 am, being the appointed time of the hearing, I was informed by my associate while I was in chambers that there was no sign of the applicant in the court precinct. As is my usual practice, I decided to wait for 15 minutes before I came on the bench and had the matter called. I came on the bench at 10.30 am. The matter was called, and there was no appearance by or on behalf of the applicant. In those circumstances Mr Robertson, who appears for the respondent (Minister) applied for an order for dismissing the application for non-appearance.
The powers that are available to this Court if a party to a proceeding is absent from the hearing are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CWW17 v Minister for Immigration

Details

AGLC: CWW17 v Minister for Immigration [2018] FCCA 582
Case: [2018] FCCA 582
Decision Date: 22 February 2018

CaseChat Overview and Summary

This matter concerned an application purportedly made under s 477(2) of the *Migration Act 1958* (Cth) seeking an extension of time to apply for a remedy under s 476 of the Act. The application was directed at a decision communicated to the applicant on 6 April 2017. The applicant failed to appear at the hearing scheduled for 22 February 2018, prompting the respondent Minister to apply for dismissal of the application for non-appearance.

The Court was required to determine whether to dismiss the application due to the applicant's absence, or to proceed with the hearing. The applicant's filed affidavit merely attached the decision in question, which referred to an application made under s 48B of the Act. This section relates to circumstances where a non-citizen in the migration zone has had a protection visa application refused and is therefore prevented by s 48A of the Act from making a further application for a protection visa.

The Court noted that while there was no direct evidence that s 48A applied to the applicant, the fact that the applicant had applied to the Minister under s 48B provided a sufficient basis to infer that s 48A did indeed apply. Despite the applicant's non-appearance, the Court considered it appropriate to proceed with the hearing, rather than dismiss the application outright, in accordance with its powers under r 13.03C of the *Federal Circuit Court Rules 2001* (Cth). The Court then proceeded to consider the substantive merits of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before the Court is an application purportedly pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the time provided for by s.477(1) of the Act for making an application for the granting of a remedy under s.476 of the Act. The application is directed to a decision (Decision) that was communicated to the applicant in a letter dated 6 April 2017 from the Department of Immigration and Border Protection (Department). The matter came before a Registrar on 28 September 2017 on a first court date. On that day the Registrar made directions and ordered that the matter be listed for hearing as to the competency of the application before me on 22 February 2018 at 10.15 am, that is to say, today. At around 10.15 am, being the appointed time of the hearing, I was informed by my associate while I was in chambers that there was no sign of the applicant in the court precinct. As is my usual practice, I decided to wait for 15 minutes before I came on the bench and had the matter called. I came on the bench at 10.30 am. The matter was called, and there was no appearance by or on behalf of the applicant. In those circumstances Mr Robertson, who appears for the respondent (Minister) applied for an order for dismissing the application for non-appearance. The powers that are available to this Court if a party to a proceeding is absent from the hearing are set out in r.13.03C of the Federal Circuit Court Rules 2001 (Cth). One of the powers available to the Court is simply to dismiss the application where the non-appearing party is the applicant to the proceeding. The Court, however, also has the power to proceed with the hearing generally or in relation to any claim for relief in the proceeding. In the circumstances of this case, I consider it would be appropriate that the matter proceed to a hearing. The only material that was read into evidence was the affidavit the applicant filed at the time he filed his application in this Court. That affidavit simply attached a copy of the Decision which, as I have said, is contained in the letter dated 6 April 2017 from the Department. That letter refers to an application the applicant made under s.48B of the Act that the Minister determine that s.48A of the Act does not apply to prevent the applicant from making an application for a protection visa. Subsection 48A(1) of the Act relevantly provides that:Subject to s.48B, a non-citizen who, while in the migration zone has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas where the grant of the visas have been refused (whether or not the applciations have been finally determined), may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf while the non-citizen is in the migration zone. There is no direct evidence that s.48A applies to the applicant. That the applicant, however, applied to the Minister under s.48B of the Act is a basis on which I readily infer that s.48A of the Act does apply to the applicant.

Ratio Decidendi

Legal Principle Established

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