DNI16 v Minister for Immigration

[2017] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1736

Catchwords:
MIGRATION – Administrative Appeals Tribunal – no appearance by the Applicant – appropriate matter for Court to exercise powers under r.13.03C(l)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: DNI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3243 of 2016

Judgment of: Judge Street

Hearing date: 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Sydney

Delivered on: 26 July 2017

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Ms M Wells
Sparke Helmore

ORDERS

1. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3243 of 2016

DNI16

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 Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 November 2016 affirming a decision of the delegate not to grant the application a protection visa.

2. Proceedings were commenced on in this Court on 21 November 2016, and on 30 March 2017, a Registrar of the Court made orders fixing the matter for hearing today, providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.  No such documents have been filed. 

3. The matter has been called outside the Court, and the applicant has failed to appear. The first respondent has informed the Court from the bar table, that the first respondent took steps today to seek to contact the applicant by telephone with the benefit of the interpreter, that the applicant answered the telephone and indicated that he had kidney stones and was not coming to Court. 

4. The solicitor for the first respondent endeavoured to raise with the applicant the issue that the proceedings were the subject of a letter that had been sent foreshadowing having the application dismissed if the applicant did not appear, and the applicant hung up.

5. The first respondent has moved for the proceedings 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, and I am satisfied that the applicant had been given notice foreshadowing that in the event of his failure to appear, the first respondent would move to have the application dismissed, together with costs. 

6. I am satisfied 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 certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 September 2017