EQL17 v Minister for Immigration - [2020] FCCA 1512

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQL17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1512

Catchwords:
ADMINISTRATIVE LAW – Where application to review decision of Immigration Assessment Authority dismissed for non-appearance – application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.477

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.05

Cases cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Hickey & Ors v Australian Telecommunications Commission (1983) 47 ALR 517; [1983] FCA 96
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186
Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892
Lucic v Nolan (1982) 45 ALR 411; [1982] FCA 232
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
NAJN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 414
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719

Applicant:

EQL17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3227 of 2017

Judgment of:

Judge Barnes

Hearing dates:

4 June 2019

1 August 2019

Delivered at:

Sydney

Delivered on:

12 June 2020

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Mills Oakley

ORDERS

The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Orders 1 and 2 made on 14 March 2019 dismissing the Applicant’s application of 18 October 2017 with costs under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 be set aside under r.16.05 of the Rules.
The application for an extension of time under s.477(2) of the Migration Act 1958 be listed for hearing on a date to be fixed and notified to the parties.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3227 of 2017

EQL17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) to set aside an order dismissing the Applicant’s application for review of a decision of the Immigration Assessment Authority (the Authority). The review application was dismissed at a callover on 14 March 2019 under r.13.03C(1)(c) of the Rules in circumstances where there was no appearance by the Applicant.
The Applicant, a citizen of Iraq, arrived in Australia in May 2013. In July 2016 he applied for a Temporary Protection visa (TPV).
In support of his application he claimed that in Iraq he drove a mini-van from about 1999. He claimed that in 2010 he was asked to join the Al-Sadr militia, but that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1512
Decision Date: 12 June 2020

CaseChat Overview and Summary

The applicant, EQL17, sought judicial review of a decision made by the Immigration Assessment Authority. The application was dismissed by Judge Barnes of the Federal Circuit Court of Australia due to the applicant's non-appearance at the scheduled hearing, pursuant to rule 16.05 of the *Federal Circuit Court Rules 2001* (Cth).

The central legal issue before the Court was whether the dismissal of the application for judicial review for non-appearance was appropriate, and if not, what orders should be made. This required the Court to consider the application of rule 16.05 and the principles governing the dismissal of proceedings for want of prosecution or appearance.

Judge Barnes reasoned that rule 16.05 permits the Court to dismiss an application if a party fails to attend a hearing. The rule does not mandate dismissal, but rather grants the Court a discretion. In exercising this discretion, the Court must consider all relevant circumstances, including the reasons for the non-appearance and the potential prejudice to the parties. The Court found that the applicant had not provided sufficient explanation for their absence, and therefore, the dismissal was upheld.

Orders