EQL17 v Minister for Immigration and Anor (No.2)
[2020] FCCA 2008
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQL17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2008 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Protection visa – no appearance by or on behalf of the applicant – application for an extension of time dismissed for non-appearance. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c) Migration Act 1958 (Cth), ss 476, 477 |
| 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 Street |
| Hearing date: | 22 July 2020 |
| Date of Last Submission: | 22 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2020 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the First Respondent: | Ms S Roberts via Microsoft Teams Mills Oakley |
ORDERS
The amended application filed on 11 July 2019 for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs fixed in the amount of $4,200.00.
Date of order: 22 July 2020
| 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
This is an application for an extension of time for the bringing of proceedings under ss 476 and 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 3 August 2017 affirming the decision of a delegate of the first respondent not to grant the applicant a Protection visa.
The proceedings were commenced on 18 October 2017, outside the 35 day period. The proceedings were the subject of a failure by the applicant to appear and, on 14 March 2019, a Judge of this Court dismissed the proceedings under r 13.03C(1)(c) Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
An application was made for reinstatement which was heard over two days, being 4 June 2019 and 1 August 2019, and, unfortunately, being a reinstatement application, it was not the subject of judgment until 12 June 2020.
It is apparent in relation to that reinstatement decision at paragraph 88 in respect of the alleged merits that the Court misconstrued the Authority’s reasons in suggesting that the threat letter had not been raised in the entry interview or the TPV interview. That reasoning of the Authority was clearly referring to the new claim raised by the applicant and not the threat letter as suggested in paragraph 88 of the reinstatement decision.
The matter was fixed for hearing today and the applicant has failed to appear. The first respondent has tendered email correspondence, which has been marked Exhibit 1, notifying the applicant of today’s hearing date and also a further email foreshadowing an application for costs if the applicant failed to appear. The emails were sent to the applicant’s last email address identified in the notice of address for service filed by the applicant on 11 July 2019.
The Court also unsuccessfully endeavoured to contact the applicant on the mobile telephone number identified on the applicant’s notice of address for service and last filed affidavit and the number appeared to be disconnected.
The Court is satisfied on the evidence before the Court that the applicant was properly notified of today’s hearing date. The Court is satisfied that this an appropriate matter which to exercise the Court’s powers under r 13.03C(1)(c) of the Rules.
In that regard, the Court also notes that this is a matter in respect of which the applicant has filed a number of affidavits, a statement and an amended application, by reason of which it is appropriate to permit costs in respect of the interlocutory application to reflect the obvious increased interlocutory work that was required by the first respondent in the present case.
I certify that the preceding eight (8) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 July 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 31 July 2020
1
0
3