DZV16 v Minister for Immigration

[2017] FCCA 368

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 368

Catchwords:
MIGRATION – Protection (Class XA) visa – applicant a citizen of New Zealand – no appearance by the applicant – deliberate decision by the applicant not to attend Court – appropriate matter for Court to exercise powers under r.13.03C(1)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

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

Applicant: DZV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3661 of 2016

Judgment of: Judge Street

Hearing date: 8 March 2017

Date of Last Submission: 8 March 2017

Delivered at: Sydney

Delivered on: 8 March 2017

REPRESENTATION

No appearance by the Applicant.

Solicitors for the Respondents:

Mr J Pinder

Minter Ellison Lawyers

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3661 of 2016

DZV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 by the first respondent, for the dismissal of the amended application.

2. The proceedings were the subject of orders made by a Registrar on 19 January 2017 fixing the matter for hearing, providing the applicant with the opportunity to file an amended application and submissions.

Hearing dated 1 March 2017

1. The matter was fixed for hearing on 1 March 2017. The applicant appeared on that day and the hearing commenced initially as an application for an extension of time, under s.477 of the Migration Act 1958 (Cth) (“the Act”).

2. At the hearing, the Court raised with the applicant the difficulties with his then-amended application. That then-amended application only identified one ground concerning the interests of his children. The applicant’s children were not parties to the applicant for protection and their best interests were not a relevant consideration for the Tribunal in determining the applicant’s claim for a protection visa.

3. While the Court was delivering its reasons in respect of the s.477 application, Mr Pinder, the solicitor for the first respondent drew the Court’s attention to the fact that that extension of time was not required and that the Court file correctly recorded a lodging date within the time, provided under s.477 of the Act.

4. The applicant who is a citizen of New Zealand, made an application for an adjournment during the course of the hearing. As a result of the position being that the applicant did not need an extension of time under s.477 of the Act and that the applicant had made an application for an adjournment, the Court adjourned the matter to today for hearing. The Court also provided the applicant with an opportunity to file any further amended application affidavit evidence of submissions. No such documents were filed.

Hearing dated 8 March 2017

1. The matter has been called outside the Court and the applicant has not appeared. Emails between the applicant and the first respondent have been tendered. The emails identify that on 7 March 2017 the applicant communicated that he wished to withdraw his application. A further email was tendered, identifying that the applicant had declined to attend the Court this morning when offered transportation from the detention centre. The applicant has made a deliberate decision not to attend Court.

2. The first respondent has moved as indicated above for the dismissal of the proceedings given the absence of the applicant who is in detention. On the evidence before the Court, it is apparent that the applicant was well aware of the hearing date, was offered transportation and has made a deliberate decision not to attend Court. 

3. The Court notes that the first respondent was also sent some proposed references in relation to the applicant. This Court does not have power to reconsider the merits of the application and the references on their face, are irrelevant to the issue of whether there was any jurisdictional error.

4. The applicant had a detailed migration history, having arrived in Australia on a false passport in 2008. The applicant used that false name until New Zealand authorities identified the applicant’s real name in 2014. The applicant on 6 November 2015 was taken into custody and charged with a number of criminal offences in Australia. In relation to those offences, the applicant was sentenced on 1 April 2016 and given the time served, released from custody and then taken into detention.

5. In the applicant’s email referring to his desire to withdraw his application, there is a reference to the applicant being unable to gather the support and financial help to seek legal representation. From the material before the Court, I am satisfied that the applicant had a reasonable opportunity to arrange legal representation if he was able to do so. The applicant’s inability to arrange legal representation is not a basis upon which the applicant was entitled to decline from attending Court today if he wished his application to proceed. 

6. In the circumstances, this is an appropriate matter for the exercise of the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

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

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 March 2017