CXN18 v Minister for Home Affairs

[2019] FCA 650

FEDERAL COURT OF AUSTRALIA

CXN18 v Minister for Home Affairs [2019] FCA 650

Appeal from:

CXN18 and Anor v Minister for Home Affairs [2018] FCCA 3305

File number:

NSD 2305 of 2018

Judge:

ALLSOP CJ

Date of judgment:

10 May 2019

Catchwords:

MIGRATION – application for second protection visa made after previous protection visa application refused – appeal dismissed with costs for want of appearance

Legislation:

Migration Act 1958 (Cth), s 48A

Federal Court Rules 2011 (Cth), r 36.75

Date of hearing:

10 May 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Appellants:

The appellants did not appear

Counsel for the Respondent:

C Saunders of DLA Piper

ORDERS

NSD 2305 of 2018

BETWEEN:

CXN18

First Appellant

CXO18

Second Appellant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	10 MAY 2019

THE COURT ORDERS THAT:

1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed with costs.

2.The Minister, through his solicitors, serve on the appellants at their address for service, and at such addresses the Minister considers likely to be received, a copy of these orders and, in addition, the settled copy of these reasons and a letter informing the appellants of their right to seek to have the dismissal set aside as an order made in their absence.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. In this matter, the appellants, who are husband and wife and citizens of the People’s Republic of China, have sought to appeal from a decision of the Federal Circuit Court of Australia, which decision dismissed an application for judicial review of a decision of an officer of the Department of Home Affairs which determined that their application for protection visas lodged in 2018 were invalid. That invalidity was said to be by reason of s 48A of the Migration Act 1958 (Cth) which prohibits a second protection visa being applied for after the failure of a first application.

2. The appellants have not appeared today.  The matter was called three times outside, but there was no appearance.  Attempts were made both by my Associate and the solicitor appearing for the respondent Minister to contact the appellants on the telephone number available in the papers.  There was no response. 

3. I note that the first appellant appeared before the learned primary judge on behalf of himself and his wife. 

4. In the circumstances, the Minister requests an order dismissing the appeal under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) with costs. I am prepared to make that order.

5. As an order made in the absence of the party, the party will have an entitlement to seek to set the order aside. Should that step be taken by the appellants, they need to understand that to have the order dismissing the appeal set aside, the Court will need to be persuaded why the clear terms of s 48A do not govern the matter, in particular the terms of s 48A(1C).

6. Thus, if the order is to be set aside, the appellants will need to address the contents of the submissions of the Minister which are dated 2 May 2019 and which were served on them, according to the affidavit of Ms Nguyen, on or after 2 May 2019. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:       10 May 2019