FTY17 v Minister for Immigration and Border Protection

[2019] FCA 682

FEDERAL COURT OF AUSTRALIA

FTY17 v Minister for Immigration and Border Protection [2019] FCA 682

Appeal from:

Application for extension of time and leave to appeal: FTY17 v Minister for Immigration & Anor [2018] FCCA 3981

File number:

NSD 2180 of 2018

Judge:

ROBERTSON J

Date of judgment:

15 May 2019

Catchwords:

MIGRATION – application for an extension of time and leave to appeal from orders of the Federal Circuit Court of Australia dismissing the applicant’s application in a case for non-appearance

Legislation:

Migration Act 1958 (Cth) s 65

Federal Court Rules 2011 (Cth) r 35.14

Cases cited:

House v R [1936] HCA 40; 55 CLR 499

Date of hearing:

15 May 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Applicant:

The Applicant appeared in person with the aid of an interpreter

Solicitor for the First Respondent:

Mr S Valliappan

Counsel for the Second Respondent:

The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

NSD 2180 of 2018

BETWEEN:

FTY17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	15 MAY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time and for leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1. This is an application, filed on 26 November 2018, pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time to appeal and leave to appeal from orders made by the Federal Circuit Court of Australia on 30 October 2018.

2. Those interlocutory orders were:

   1.The Application in a Case made on 17 October 2018 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

   2.The applicant is not permitted to make any further application in relation to the Administrative Appeals Tribunal decision of 4 December 2017 without leave of the Court.

   3.        The applicant pay the first respondent’s costs set in the amount of $350.

3. The application in a case which was dismissed by the primary judge sought to set aside orders of the Registrar made on 4 October 2018 which dismissed the applicant’s judicial review application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth) due to the applicant’s failure to appear at a call-over.

4. The applicant requires an extension of time of 13 days to bring his application for leave to appeal.

5. The primary judge made the following findings.  The applicant had reasonable notice of the Court event on 30 October 2018.  When the matter was called the applicant did not appear.  He had therefore not attended at Court to prosecute his Application in a Case.  No explanation for the non-attendance was available.  The…