Exa19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 448

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 448

File number(s):

SYG 3243 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

4 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – no appearance by or on behalf of the applicant – application dismissed for non-appearance under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Migration Act 1958 (Cth), s 476

Number of paragraphs:

5

Date of hearing:

4 February 2021

Place:

Sydney

Applicant:

No appearance

Solicitor for the First Respondent:

Mr A Gardner
MinterEllison

ORDERS

SYG 3243 of 2019

BETWEEN:

EXA19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS THAT:

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

2.The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal made on 19 November 2019 affirming the decision of a delegate of the first respondent not to grant the applicant a Protection visa.

2. These proceedings were commenced on 10 December 2019.

3. On 10 November 2020, a Judge of the Court made orders fixing the matter today for hearing by audio and/or video link. The applicant has failed to appear. The Court has unsuccessfully endeavoured to contact the applicant on the applicant’s telephone number identified on the originating application.

4. The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and has tendered in support a letter sent to the applicant’s email address dated 27 January 2021 reminding the applicant of the hearing and foreshadowing an application to have the proceedings dismissed with costs if the applicant failed to attend.

5. The Court is satisfied on the evidence before the Court that the applicant was aware of today’s hearing date. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding five (5) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 10 March 2021