Ffi17 v Minister for Immigration

[2018] FCCA 1482

FEDERAL CIRCUIT COURT OF AUSTRALIA

FFI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1482

Catchwords:
MIGRATION – Judicial review – non-appearance by applicant – non-compliance with orders previously made – dismissal for non-appearance and non-compliance.

Legislation:

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

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Applicant: FFI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 653 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 17 and 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Perth

Delivered on: 31 May 2018

REPRESENTATION

Applicant:

In person with the assistance of an interpreter-17 May 2018

No appearance by or for the applicant-31 May 2018

Counsel for the First Respondent: Ms E Tattersall

Second Respondent: Submitting appearance save as to costs

Solicitors for the Respondents: Spark Helmore

ORDERS (as made 31 May 2018)

1. That the application be dismissed pursuant to rr.13.03B(1)(a) and 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. That there be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 653 of 2017

FFI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(delivered ex tempore and later edited)

1. The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision”) made on 7 November 2017. The Tribunal Decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”).

2. In circumstances to which the Court will come to, it is unnecessary to set out the background or the Tribunal Decision.  It suffices to say that the Judicial Review Application sets out in three paragraphs what purport to be grounds of review, but which, in reality, do no more than seek impermissible merits review, contrary to the longstanding principle in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. Pursuant to orders made by a Registrar on 15 December 2017 (“Registrar’s Orders”), the applicant was entitled to file an amended application, any supporting affidavits and an outline of submissions prior to hearing. When the matter came to hearing on 17 May 2018, no further materials had been filed. At hearing, with the assistance of an interpreter, the Court explained to the applicant that he must make submissions addressing the grounds of his Judicial Review Application in which he asserted there was a jurisdictional error in the Tribunal Decision (but which actually sought impermissible merits review), and the Court dealt with the concept of jurisdictional error with the applicant and sought oral submissions from the applicant.

4. The applicant made a submission to the effect that he did not have anything prepared and that all of the material regarding his Protection Visa was prepared by his migration agent. The Court granted an adjournment to allow the applicant to contact his migration agent and prepare his documents. The Court then  made the following orders (“Court’s Orders”):

   1. The applicant file and serve by 4pm on 30 May 2018:

   a. any amended application including particularised grounds of review;

   b. any supporting affidavits; and

   c. a written outline of submissions of no more than 10 pages.

   2. The matter be adjourned to a further directions hearing at 2.15pm on 31 May 2018.

   3. The applicant pay the first respondent’s costs of the adjournment in the sum of $5,000 by 4.00pm on 30 May 2018.

   4. If the applicant fails to comply with orders 1 and 3, the first respondent have liberty to apply orally at the directions hearing referred to in order 2 to have the application dismissed for non-compliance in accordance with rr.13.03A and 13.03B of the Federal Circuit Court Rules 2001 (Cth).

   5. The applicant is to file and serve an amended notice of address for service forthwith.

5. The Court notes that there has been no compliance with order 1 of the Court’s Orders, which brings into effect order 4 of the Court’s Orders. The Minister sought dismissal on the basis of the applicant’s non-appearance today pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).  The Court nevertheless considers, given the Court’s Orders, that it is appropriate to deal with the matter on the basis of non-compliance as well, and the Court notes further that there was also non-compliance with order 5 of the Court’s Orders, in relation to filing an amended notice of address for service.

6. Against the background of an untenable Judicial Review Application or a Judicial Review Application which contains grounds which are not able to establish jurisdictional error, in circumstances where the applicant has been given not one but two opportunities to file an amended application, affidavits and submissions by reason of both the Registrar’s Orders and the Court’s Orders and has failed to do so, and when the applicant has failed to attend the hearing today, without any explanation, the matter having been called both within and outside the courtroom, it is appropriate that there be an order that the Judicial Review Application be dismissed pursuant to rr.13.03B(1)(a) and 13.03C(1)(c) of the FCC Rules.

7. The Court is unaware whether or not the Minister’s previous costs have been paid, but, in any event, the Minister did not press for any additional order to that in order 3 of the Court’s Orders. Therefore, there will be no order as to costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 7 June 2018