GID18 v Minister for Home Affairs

[2019] FCA 1252

FEDERAL COURT OF AUSTRALIA

GID18 v Minister for Home Affairs [2019] FCA 1252

Appeal from:

Application for an extension of time and leave to appeal: GID18 v Minister for Home Affairs [2019] FCCA 362

File number:

NSD 257 of 2019

Judge:

ALLSOP CJ

Date of judgment:

9 August 2019

Catchwords:

MIGRATION – application for extension of time and leave to appeal – where second application for protection visa refused on ground of invalidity under s 48A of the Migration Act 1958 (Cth) – applicant did not appear at hearing – application dismissed with costs

Legislation:

Migration Act 1958 (Cth), ss 48A, 48B

Federal Circuit Court Rules 2001 (Cth), r 13.10

Federal Court Rules 2011 (Cth), r 35.33(1)(a)(i)

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:

5

Counsel for the Applicant:

The applicant did not appear

Counsel for the Respondent:

Ms K Morris of Clayton Utz

ORDERS

NSD 257 of 2019

BETWEEN:

GID18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	9 AUGUST 2019

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.

2.If the applicant seeks to have Order 1 set aside as an order made in his absence, the matter is to be listed before 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. In this matter, the applicant seeks an extension of time in which to file an application for leave to appeal from the orders of the Federal Circuit Court made on 5 February 2019 dismissing an application for judicial review pursuant to r 13.10(a) and an order for costs. The order made by the Federal Circuit Court judge, pursuant to that provision in the Federal Circuit Court Rules 2001 (Cth), was interlocutory, in that it was for summary dismissal on a show cause basis. The matter was listed before me today for the two applications.

2. Exhibit A reveals that the applicant, at least through his email address, which is provided by the applicant on his application form, has been notified of today’s hearing.  The letter sent to him by the Minister’s solicitors was to the wrong address.  [Address redacted] was identified in the letter, when in fact it is [Address redacted].  But I am satisfied that the applicant has at least had the letter sent to his email address that he has provided.  He will have an opportunity to set these orders aside as made in his absence, in any event.  I had the matter called three times outside.  He did not appear. 

3. The respondent’s solicitor seeks an order under sub-r 35.33(1)(a)(i) that the application be dismissed. I propose to make an order to that effect and on that basis. The underlying application is one which the learned Circuit Court judge found to be clearly within the terms of s 48A and not within the terms of s 48B of the Migration Act 1958 (Cth), that is, that there can be no second application for a protection or complementary protection visa after the disposition of a first application.

4. On the evidence that was before the Circuit Court and the material before me, I do not understand how the applicant can avoid the operation of s 48A. Nevertheless, I have not heard from him. If an application is made to set aside the orders I am about to make, I direct that the Registry and National Operations Registry list the matter before me so that I can hear submissions by, or on behalf of, the applicant as to why s 48A is not a bar to his application.

5. In that context and for those reasons, I make orders pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), that the application be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:       9 August 2019