SZSMR v Minister for Immigration

[2017] FCCA 1148

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1148

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.438
Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 44.12

Cases cited:
Minister for immigration and Border Protection v Singh [2016] FCAFC 183

Applicant: SZSMR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 631 of 2016

Judgment of: Judge Emmett

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

No appearance by or on behalf of the applicant.

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 631 of 2016

SZSMR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 21 March 2016, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, counsel for the first respondent, Mr Martin Smith read the affidavit of Gabriel Doyle affirmed 23 May 2017.

3. Ms Doyle’s affidavit annexes two screenshots from the internal database of the Department of Immigration and Border Protection (“the Department”) relating to the applicant. The first screenshot indicates that the applicant’s visa, granted on 21 January 2013, has ceased. The second screenshot displays the movement records for the applicant in a table with a number of headed columns. The third column, headed “Direction”, records when a person has arrived in Australia and when that person has departed Australia. The columns headed “Date and Time” record the respective date and time that a person either arrived in or departed from Australia. The second screenshot indicated that the applicant departed Australia on 13 December 2016 at 9.06pm and that he is now offshore. 

4. Based on the evidence before me, I am satisfied that the applicant is no longer in Australia. 

5. I note that the applicant attended a directions hearing on 28 April 2016 before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application, any further evidence by way of affidavit, and submissions in support of his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 16 February 2016. The matter was set down for final hearing today at 10.15am before me.

6. On that occasion, the applicant was also provided with the contact details of legal services providers and translating and interpreting services, in documents headed in his own language.

7. I also note the directions made on 28 April 2016 provided that in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice. 

8. The affidavit of Ms Doyle also refers to a certificate issued under s.438 of the Migration Act 1958 (Cth) on 27 July 2015, in respect of certain identified folios in that certificate. Those folios were provided to the Court in a sealed envelope, and a brief description of them is provided in Ms Doyle’s affidavit. They were referred to as “Annexure GD-3” in Ms Doyle’s affidavit. Mr Smith informed the Court that the first respondent does not claim confidentiality over any of the documents that form part of “Annexure GD-3”.

9. In written submissions filed by the first respondent on 23 May 2016, the first respondent addresses the issue of the s.438 certificate and contends that in the circumstances of this case, it does not disclose jurisdictional error.

10. I note that the relevant documents the subject of the certificate were placed in a sealed envelope and not annexed to Ms Doyle’s affidavit, in accordance with the observations of the Full Court of Federal Court of Australia in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67]. I further note that the first respondent’s submissions identify more fulsomely the documents covered by the certificate and why it is that the Tribunal did not fall into error as a result of the issuing of that certificate.

11. The grounds of the application relied on by the applicant do not raise any issue in relation to the issuing of that certificate, and essentially allege that the Tribunal erred in making adverse credibility findings in certain circumstances.

12. Mr Smith confirmed that the first respondent would oppose any relief sought by the applicant in the initiating application on the ground that the decision of the Tribunal is not affected by jurisdictional error and was otherwise made according to law.

13. I am satisfied that the orders sought by the first respondent are appropriate.

14. Accordingly, the proceeding before this Court, commenced by way of application filed on 21 March 2016, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  31 May 2017