CXH17 v Minister for Immigration

[2020] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXH17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2215

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: CXH17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2069 of 2017

Judgment of: Judge Nicholls

Hearing date: 2 July 2020

Date of Last Submission: 2 July 2020

Delivered at: Sydney

Delivered on: 2 July 2020

REPRESENTATION

Applicant: No appearance

Counsel for the First Respondent: Ms G. Allen

Solicitors for the Respondents: Minter Ellison Lawyers

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 30 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.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2069 of 2017

CXH17

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. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 June 2017, seeking review of the decision of the Administrative Appeals Tribunal (“Tribunal”) which on 31 May 2017 affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa (“the visa”).

2. In evidence before the Court is a bundle of relevant correspondence dated 4 May 2020 and 24 June 2020 sent to the applicant, tendered by the Minister (“RE1”), and a bundle of further email correspondence from the Court, tendered by the Minister, to the parties, notifying them of the listing of today’s hearing (“RE2”).

Before the Court

1. The application to the Court was made on 30 June 2017. The applicant appeared before a Registrar of the Court on 28 September 2017, when various orders were made, by consent, for the progress of this case. On that occasion the applicant provided updated details of her residential, postal and email address.

2. In this matter, I have before me in evidence two bundles of relevant documents. One, I have marked as RE1 communications from the Minister’s solicitors to the applicant, dated 24 June 2020, and also 4 May 2020, in which the applicant was put on further notice of the Court event today. Importantly, in correspondence, the Minister notified the applicant that if she did not appear at the hearing today, then the Minister may apply to have the matter dismissed for non-attendance.

3. I also note RE1. The Court also communicated with the applicant to notify her of the Court event today, and to provide the applicant with the opportunity, if she wished, given current COVID-19 protocols, to appear by telephone.

4. The Minister’s correspondence was sent to the applicant’s email address that was the most recent email address provided by the applicant to the Court at the first Court date. The second letter from the Minister was sent by both email to the same address, and to the applicant’s residential address which was notified, again, at the first Court date.

5. The Court’s correspondence was sent to two email addresses, the email address provided by the applicant at the first Court date, and an earlier email address provided by the applicant with her originating application. 

6. Apart from attending at the first Court date, there has been no further action by the applicant in the prosecution of her case. Nor, despite orders made by the Registrar, has the applicant provided any written submissions, or amended application, or further evidence by way of affidavit.

7. When the matter was called today, there was no appearance by, or on behalf of, the applicant. As had been foreshadowed by the Minister’s solicitors, to the applicant, in that circumstance, the Minister’s lawyer today asked that the matter be dismissed for non-attendance. I am satisfied on the evidence that the applicant has had reasonable notice of the Court event today. As I said, when the matter was called, there was no attendance by or on behalf of the applicant. 

8. There has been no request that I am aware of for any adjournment or to otherwise indicate any difficulty in attending today. I note, in particular, given the current circumstances, that the applicant was given the opportunity to appear by telephone, but failed to respond to that opportunity.

Conclusion

1. In all the circumstances, it is appropriate that an order that the order the Minister seeks, that is, that the matter be dismissed for non-attendance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). I will make that order.

2. It is appropriate that an order for costs be made in the usual way. Costs follow the event. The applicant, for whatever reason, has elected not to attend to prosecute her application. I am satisfied, given what is on the Court’s file, that the Minister, who through his solicitors has attended Court today, has been ready to respond to the application. The Minister has filed multiple copies of the Court Book, made various Court attendances, and prepared and filed written submissions. I am satisfied that a costs order should be made. There is nothing that would argue against the making of the order in the usual way. As to the amount, I am satisfied the amount sought is reasonable. I will make that order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 11 August 2020