GAV18 v Minister for Home Affairs

[2019] FCA 1259

FEDERAL COURT OF AUSTRALIA

GAV18 v Minister for Home Affairs [2019] FCA 1259

Appeal from:	Application for an extension of time and leave to appeal: GAV18 v Minister for Home Affairs & Anor [2019] FCCA 424
File number:	NSD 417 of 2019
Judge:	ALLSOP  CJ
Date of judgment:	9 August 2019
Catchwords:	MIGRATION – application for extension of time and leave to appeal – non-appearance of applicant at hearing – application dismissed with costs
Legislation:	Federal Court Rules 2011 (Cth), r 35.33
Cases cited:	DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Date of hearing:	9 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The applicant did not appear
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	MinterEllison

ORDERS

NSD 417 of 2019

BETWEEN:

GAV18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP  CJ
DATE OF ORDER:	9 AUGUST 2019

THE COURT ORDERS THAT:

1.The name of the first respondent in this matter be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.

THE COURT DIRECTS THAT:

3.Should an application be made by the applicant to set aside Order 1 above made in his absence, the matter be placed in the docket of Allsop CJ.

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

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. This is an application for an extension of time in which to file and serve an application for leave to appeal and, if granted, an application for leave to appeal in respect of and against orders made by a judge of the Federal Circuit Court in February of this year dismissing in a show cause hearing the application for review of a decision of the Administrative Appeals Tribunal (the Tribunal), which decision was to the effect that the Tribunal had no jurisdiction to hear the review application because it was out of time. 

2. By way of background, the applicant is a citizen of the People’s Republic of China who arrived in Australia on 15 June 2012 on a student visa that was valid until March 2014.  He lodged an application for protection in March 2014, which contained an address of his migration agent and authorisation of communications with and to that agent.  The Tribunal found that the delegate’s decision that had been made on 26 August 2014 was dispatched by post to the last address provided by the applicant, which was the address for the agent.  The applicant did not apply to the Tribunal until a time over four years after the dispatch of that decision, that is, in October 2018. 

3. No issue appears to arise in relation to the decision of the Full Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, the notice being in somewhat different terms. In any event, some argument may be put in relation to that, given the dispatch of the letter to the migration agent. In any event, there is no real explanation for the four-year delay, other than an assertion that it was the fault of the migration agent.

4. In any event, I do not propose to decide the matter on its merits today.  The matter was called three times outside after a quarter-of-an-hour delay upon non-attendance at 3.15pm. 

5. I am told by Mr Swan, who appears for the Minister, that his instructor, within his presence, made two calls shortly prior to 3.15pm and somewhat after 3.15pm to the telephone number provided by the applicant.  There was no answer.  There was no appearance when the matter was called at 3.30pm. 

6. Mr Swan has tendered two bodies of emails, which I have marked as Exhibit A, which identify recent communications in July and August by a solicitor from MinterEllison informing the applicant of today’s date.  In the ordinary course, the Registry would have done so in any event, but the evidence is clear that the applicant was informed by these communications from the Minister’s solicitor. 

7. In these circumstances, with a non-attendance, the Minister seeks an order dismissing the application for an extension of time in which to file an application for leave to appeal under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth).

8. In all the circumstances, that is an appropriate order, which I will make.  The applicant will have an entitlement to seek to have this order set aside as an order made in his absence.  If that occurs, I will direct that the Registrar list the matter before me to avoid another judge familiarising him or herself with the file.

9. Mr Swan raised a final matter concerning the official name of the Minister, which has recently changed.  Mr Swan sought an order that the Minister’s name in these proceedings be accordingly amended.  I make that order.

10. Therefore, the orders that I make are: 

    1.The name of the first respondent in this matter be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

    2.Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.

    3.Should an application be made by the applicant to set aside Order 1 above made in his absence, the matter be placed in the docket of Allsop CJ.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:       9 August 2019