Ecv16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 590

FEDERAL COURT OF AUSTRALIA

ECV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 590

Appeal from:	Application for an extension of time:  ECV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCCA 3607
File number(s):	NSD 166 of 2020
Judgment of:	GREENWOOD J
Date of judgment:	27 May 2021
Catchwords:	MIGRATION – consideration of an application for an extension of time to file a notice of appeal from a judgment and orders of the Federal Circuit Court of Australia
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	13
Date of hearing:	27 May 2021
Solicitor for the First Respondent:	HWL Ebsworth Lawyers

ORDERS

NSD 166 of 2020

BETWEEN:

ECV16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	GREENWOOD J
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 20 February 2020 is dismissed. 

2.The applicant pay the costs of the first respondent of and incidental to the application. 

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

EX TEMPORE REASONS FOR JUDGMENT

GREENWOOD J:

1. These proceedings are concerned with an application for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia dismissing the applicant’s application for the grant of the constitutional writs on grounds of jurisdictional error concerning a decision of the Administrative Appeals Tribunal (the “Tribunal”) which affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa. 

2. The principal judgment the subject of the application for an extension of time was pronounced on 11 December 2019, and the application for an extension of time was filed on 20 February 2020, approximately two months and nine days later.

3. The application for an extension of time is supported by an affidavit from the applicant, ECV16, in which very brief things are said about the grounds for the application.  The application is also supported by a draft notice of appeal upon which the applicant would seek to rely, assuming an extension of time were to be granted.  The grounds of the appeal are, simply, that the Tribunal “considered irrelevant facts” to reach its decision and further that the case was not considered in a “fair way”.  The applicant also contends that he was not given a chance to present evidence in support of his claim.  He also says that the Tribunal refused his claim “not based on any solid evidence”.

4. However, these matters have been very substantially overtaken by the following events. 

5. On Friday, 5 February 2021, the applicant sent an email to officers of the Registry of the Federal Court and, particularly, officers charged with the responsibility of dealing with matters relating to migration hearings. 

6. In the email of 5 February 2021, the applicant said this:

   Hi Madam/Sir

   I went back to China.  Please discontinue my case. 

   [T]hank you. 

7. ECV16 then uses his actual name which, for the purposes of anonymization, I will not mention. 

8. In response, the Court sent emails to the applicant and, in particular, an email on 8 February 2021 responding to the email of 5 February 2021 by which the Court officers attached a notice of discontinuance and invited the applicant to execute the document and return it to the Court. 

9. There was no response to that email. 

10. A further email was sent by officers of the Court to the applicant on 24 March 2021 referring to the earlier email and, again, urging the applicant to complete the notice of discontinuance and return it to the Court in order to efficiently enable the application to be discontinued. 

11. There was no response to that email. 

12. Apart from these matters, an affidavit has been filed by the solicitors for the Minister, HWL Ebsworth, by Ms Sophie Lloyd.  The deponent deposes to facts which are drawn from the records maintained by the Department of Home Affairs concerning movements in and out of Australia by the applicant.  The records, copies of which are attached to the affidavit, establish that the applicant departed Australia on 3 May 2020.  He had arrived in Australia on 4 November 2013, but the records demonstrate, clearly, that he departed on 3 May 2020 and, of course, he has sent the Court an email confirming that he had returned to the People’s Republic of China.  In the period that he was in Australia, he was the holder of a “bridging visa” under the provisions of the Migration Act 1958 (Cth) and, of course, that visa came to an end with his departure from Australia. The applicant presently has no lawful right to return to Australia.

13. In all of these circumstances, the appropriate order is that the application for an extension of time filed on 20 February 2020 by the applicant is dismissed with an order that the applicant pay the costs of the Minister of and incidental to the application. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

Associate:

Dated:       27 May 2021