DXJ18 v Minister for Home Affairs

[2019] FCA 1347

FEDERAL COURT OF AUSTRALIA

DXJ18 v Minister for Home Affairs [2019] FCA 1347

Appeal from:

DXJ18 v Minister for Home Affairs [2019] FCCA 204

File number(s):

NSD 350 of 2019

Judge(s):

BURLEY J

Date of judgment:

15 August 2019

Catchwords:

MIGRATION – application for an extension of time within which to appeal from decision of the Federal Circuit Court of Australia – non-appearance of applicant at hearing – application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Federal Court Rules 2011 (Cth) r 36.03(a)(i)

Cases cited:

 DXJ18 v Minister for Home Affairs [2019] FCCA 204

Date of hearing:

15 August 2019

Registry:

New South Wales

Division:

General

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs: 

6

Counsel for the Applicant:

The Applicant did not appear at the hearing.

Solicitor for the First Respondent:

Mills Oakley Lawyers

ORDERS

NSD 350 of 2019

BETWEEN:

DXJ18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	15 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the application be dismissed with costs.

2.Should an application be made by the applicant to set aside order (1) above made in his absence, the matter be placed in the docket of Justice Burley.

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

REVISED FROM TRANSCRIPT

BURLEY J:

1. The applicant, aged 45, is a citizen of China who arrived in Australia on 21 June 2009 on a Student Guardian (Subclass 580) visa subject to Condition 8534. On 31 March 2014, the applicant lodged an application for a protection visa, which was refused by a delegate of the Minister for Home Affairs on 22 December 2014. The refusal was subsequently upheld following a merits review by the Administrative Appeals Tribunal and reviews for jurisdictional error conducted by the Federal Circuit Court of Australia (FCCA) and the Federal Court of Australia.

2. On 9 April 2018, the applicant lodged a request for a waiver of Condition 8534, which was refused by a delegate of the Minister on 4 June 2018. The applicant then applied to the FCCA for judicial review of the decision of the Minister to refuse the waiver. The FCCA considered and dismissed the application in DXJ18 v Minister for Home Affairs [2019] FCCA 204. The applicant then filed an application for an extension of time within which to appeal to this Court. An extension of time is necessary as the applicant did not file any notice of appeal within the 21 days required by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth). The present application was filed 14 days later. The application was accompanied by an affidavit in support, which provides no explanation for the lateness of the filing and attaches a draft Notice of Appeal that contains the following three proposed grounds of appeal:

   1.Department and Federal Circuit Court failed to consider my explanation and supporting documents to support my appeal which I believe it is a legal error.

   2.I am a Chinese citizen and have a strong reason to request for waiver of 8534 on my visa. I have strong fears (I practice Falun Gong which is not allowed in China) to return to my home country to apply for subclass 602.

   3.Department of Home Affairs and the Federal court did not show any concerns to my waiver evidence, I don't think I have been fairly treated.

3. On the day before the hearing, the applicant attempted to file a notice of discontinuance with the Court, but the form submitted was not completed correctly. He was asked to file a notice of discontinuance in the correct form with the Court, but has not done so. In the circumstances, the hearing remained.

4. When the matter was called, perhaps unsurprisingly, the applicant did not appear. The solicitor for the respondent submits that in the circumstances the application should be dismissed in accordance s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

5. In all the circumstances, that is an appropriate order, which I will make. The applicant will have an entitlement to apply to have this order set aside, as it was made in his absence. If he does so, then I will direct that the Registrar list the matter before me to avoid another judge familiarising her or himself with the file.

6. Accordingly, the orders that I make are:

   (1)Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the application be dismissed with costs;

   (2)Should an application be made by the applicant to set aside order (1) above made in his absence, the matter be placed in the docket of Justice Burley.

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

Associate: 

Dated:       21 August 2019