Elp18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 978

FEDERAL COURT OF AUSTRALIA

ELP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 978

Appeal from:	ELP18 v Minister for Immigration & Anor [2020] FCCA 647
File number(s):	NSD 411 of 2020
Judgment of:	GREENWOOD J
Date of judgment:	21 July 2021
Catchwords:	MIGRATION – consideration of an application for leave to appeal from 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:	7
Date of last submission/s:	21 July 2021
Date of hearing:	21 July 2021
Counsel for the Applicant:	No appearance
Solicitor for the Respondents:	Sparke Helmore

ORDERS

NSD 411 of 2020

BETWEEN:

ELP18

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:	21 JULY 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal 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 leave to appeal from the judgment given and orders made by the Federal Circuit Court of Australia on 20 March 2020 in Sydney dismissing an application for the grant of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal affirming a decision of the Minister’s delegate not to grant the applicant, ELP18, a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2. The application for leave to appeal was filed on 3 April 2020 supported by an affidavit which exhibits a proposed draft notice of appeal. The two grounds of appeal in that notice are framed in very low‑level terms without any real detail. The applicant is an Indian citizen. On arrival in Australia, he applied for a protection visa on the footing that Australia is said to owe him protection obligations under the Act, having regard to his various contentions on the facts.

3. However, an affidavit of Ms Katherine Louise Evans has been filed in the proceeding on behalf of the Minister in which Ms Evans affirms these matters.  Ms Evans is the solicitor employed by Sparke Helmore, the solicitors for the Minister.  Ms Evans has the conduct and carriage of the Minister’s response to the present applicant’s application.  On 30 October 2020, a legal officer of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs provided Sparke Helmore with a copy of the relevant “Integrated Client Services Environment (ICSE) records held by the Department [concerning] the applicant”.  The ICSE records show that the applicant departed Australia on 29 October 2020. 

4. Having regard to these records, it is apparent that the applicant is thus no longer in Australia. The ICSE records show that the applicant previously held a “Bridging visa A, Class WA‑010”. Having left Australia, the bridging visa no longer provides a lawful basis upon which the applicant could, or would be entitled, to re‑enter Australia as the bridging visa has ceased to operate under the provisions of the Act. The ICSE records show that the applicant does not currently hold any Australian visa under the Act. By leaving Australia on 29 October 2020, the applicant has abandoned the application.

5. However, the applicant has been provided with an opportunity to attend these proceedings and that opportunity was the subject of four emails.  The first email is dated 5 July 2021, which was sent by my Associate to the applicant advising that the matter would be listed for directions by video conference using Microsoft Teams on Wednesday, 21 July 2021 at 10 am Australian Eastern Standard Time.  The second email on this topic was sent by Ms Evans to the applicant on 6 July 2021 in which Ms Evans advised the applicant that the matter has been listed for a directions hearing today at 10.00am before the Court, before me. 

6. Apart from those two emails, there is a further email dated 20 July 2021 sent by Ms Evans also affirming the proposed directions hearing this morning at 10.00am.  Accordingly, the applicant has been provided with these opportunities, plus a further email from my Associate on 20 July confirming that the matter would be listed and could be attended by the applicant electronically if he wished to do so.  He has not chosen to do so and, of course, he is not physically in Australia and is not able to appear in person. 

7. Thus the only conclusion which is open is that the applicant has abandoned the application for leave to appeal.  That being so, the application must be dismissed with an order that the applicant pay the first respondent’s costs of and incidental to the application and I so order. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

Associate:

Dated:       21 July 2021