DKB16 v Minister for Immigration and Border Protection

[2021] FCCA 2128

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKB16 v Minister for Immigration and Border Protection [2021] FCCA 2128

File number(s):

MLG 2479 of 2016

Judgment of:

JUDGE LUCEV

Date of judgment:

31 August 2021

Catchwords:

MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa – where applicant off-shore – dismissal for non-appearance   

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 13.03C

Migration Act 1958 (Cth) s 476

Number of paragraphs:

5

Date of hearing:

31 August 2021

Place:

Perth

Applicant:

No appearance by or for the applicant

Counsel for the First Respondent:

Mr M. Daly

Solicitor for the First Respondent:

Mills Oakley Lawyers

For the Second Respondent:

Submitting appearance, save as to cost

ORDERS

MLG 2479 of 2016

BETWEEN:

DKB16
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	31 AUGUST 2021

THE COURT ORDERS THAT:

1.The application be dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2.

The Applicant pay the First Respondent’s costs in the sum of $3,737 by

30 September 2021.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. Before the Court is an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively”) filed on 15 November 2016. The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), affirming the Delegate’s Decision not to grant the applicant a Safe Haven Enterprise visa. The matter first came before a Registrar of the Court on 10 May 2017 for directions at which time it was set down for a final hearing on 9 October 2019 before then Judge Wilson of this Court.

2. It is common knowledge that there are significant delays in the hearing of migration judicial review proceedings in the Melbourne and Sydney Registries of this Court, and this case is an example of that.  The matter was further delayed by the appointment of Judge Wilson to the Family Court of Australia in or about May of 2019. An email was sent to the parties on 9 May 2019 indicating that consequent upon Judge Wilson’s appointment to the Family Court of Australia, the matter was adjourned sine die, pending the relisting of a final hearing.

3. Recently, a significant number of the matters which have been delayed in the Melbourne Registry have been allocated to judges of this Court in other registries, including the Perth Registry, and this is one of those matters.  Those matters have, for the most part, been the subject of directions hearings set down to ensure that the matter is in proper order to be listed for final hearing. This matter is one of the matters which was so listed for a directions hearing today.

4. The applicant does not appear today and the Minister reads the affidavit of Lynette Yi Qi Dong, affirmed 31 August 2021.  This affidavit indicates that the applicant held a relevant bridging visa up until the last bridging visa was granted, it would appear, on 18 January 2017 and which has since ceased.  That affidavit also states that the relevant records of the relevant department indicate that the applicant departed Australia on 17 April 2021, and that the deponent of the affidavit believes that the applicant is no longer in Australia, having departed on that date, and does not hold a visa that would permit his re-entry into Australia. 

5. In those circumstances, it is appropriate that the application be dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) as was submitted by the Minister. In those circumstances, there will be an order to that effect. It is also appropriate in the circumstances that there be an order for costs as sought by the Minister, which on the scale for a matter that has reached this stage and has then been dismissed for non-appearance, is a sum of $3,737.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       3 September 2021