SZUSW v Minister for Immigration

[2016] FCCA 2100

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUSW v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2100

Catchwords:
MIGRATION – Application for review set down for final hearing – Applicant leaves Australia without current visa and not entitled to return – No point or purpose in maintaining the final hearing date – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.14, 477

Federal Circuit Court of Australia Act 1999 (Cth), s.15
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

SZVZR v Minister for Immigration [2016] FCCA 515

Applicant: SZUSW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1972 of 2014

Judgment of: Judge Dowdy

Hearing date: 12 August 2016

Delivered at: Sydney

Delivered on: 18 August 2016

REPRESENTATION

Counsel for the Applicant: No appearance for or by the Applicant.

Counsel for the Respondents: Mr J Pinder.

Solicitors for the Respondents: Minter Ellison.

ORDERS OF THE COURT

1. The Application filed in this Court on 15 July 2014 is hereby dismissed.

2. The Applicant is ordered to pay the First Respondent’s costs in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1972 of 2014

SZUSW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed in this Court on 15 July 2014 the Applicant sought constitutional writs quashing a decision of the Second Respondent, the Administrative Appeals Tribunal (then named the Refugee Review Tribunal) (Tribunal) of 6 June 2014 affirming the decision of a Delegate of the First Respondent, the Minster for Immigration & Border Protection (the Minister), not to grant to Applicant a Protection (Class XA) visa (Protection visa).

2. The Applicant also needed and sought a short extension of time under s.477 of the Migration Act 1958 (the Act).

3. The matter was first mentioned before a Judge of this Court on 11 August 2014 when the Applicant appeared in person and procedural consent orders were made for the preparation of the case for hearing.

4. Then on 15 December 2014 there was a telephone conference before the same Judge of the Court when the Applicant appeared in person and the Minister’s solicitor appeared via telephone and the matter was set down for final hearing on 19 October 2016 at 2:15pm. The matter was subsequently allocated to be heard by me on that date.

5. By email to the Court of 26 July 2016 the Minister requested that the case be relisted with a view to having it dismissed because the Applicant had left Australia and did not hold a current visa to return to Australia.

6. I acceded to that request and the matter was listed before me on Friday 12 August 2016 when Mr Pinder appeared on behalf of the Minister and sought dismissal for non-appearance of the Applicant under r.13.03(c)(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules) for default of appearance of a party at a Court hearing.

7. I make the following findings:

   a)When the matter was called by my Associate on Friday 12 August 2016 I directed that the name of the Applicant be called outside Court three times, and there was no appearance.

   b)That the Applicant was last granted an on-shore Bridging visa on 22 January 2015 which was in effect until 29 March 2015.

   c)That the Applicant left and departed Australia on 29 March 2015 with his on-shore Bridging visa then ceasing by the act of leaving Australia.

   d)The Applicant is a citizen of Pakistan and not Australia and has no entitlement to come back to Australia as he does not hold a visa and under s.14 of the Act he would be a non-citizen in the Australian migration zone who is not a lawful non-citizen and thereby would be an unlawful non-citizen.

   e)That it is unlikely in the extreme that the Applicant will appear on 19 October 2016 for the appointed final hearing.

   f)The Applicant has been informed of the case being before the Court on 12 August 2016 by means of:

   i)Being copied into the email dated 26 July 2016 from the Minister to my Associate requesting relisting of the case after 9 August 2016. The email address of the Applicant to which that email was copied was the email address provided by the Applicant on his application filed in this Court on 15 July 2014;

   ii)Email of 10 August 2016 from my Associate to both parties advising that I would be prepared to list this matter on Friday 12 August 2016 on the basis that it was made clear to the Court and the Applicant the purpose which was sought to be achieved by the relisting;

   iii)Email from the Minister of 10 August 2016 to my Associate and copied to the Applicant advising that the Minister would be seeking dismissal of the Application under r.13.03(c)(1)(c) of the Federal Circuit Court Rules, on the basis that the Applicant was now off shore and did not have permission to return and as such was not in the position to prosecute his current application in this Court; and

   iv)My Associate’s enquiry via email dated 11 August 2016 to the Applicant as to whether he was still in Australia and forwarding him further copies of the emails referred to above and to which email there has been no response.

Disposition

1. Accordingly, it is proved that the Applicant is no longer in Australia and is in no position to legally return in support of his application set down for final hearing on 19 October 2016.

2. In these circumstances I do not consider that there is any good point or purpose in maintaining the final hearing date, thereby causing the Minister, in my view pointlessly, to prepare for the hearing with the usual written submissions. The Minister has referred me to the decision of Judge Emmett in SZVZR v Minister for Immigration [2016] FCCA 515 where in like circumstances the Applicant had departed Australia well before the appointed final hearing date and her Honour dismissed the application pursuant to r.13.03(c)(1)(c) of the Federal Circuit Court Rules.

3. I am prepared to make an order dismissing the application in this case supported by r.13.03(c)(1)(c) of the Federal Circuit Court Rules. However, I rely chiefly on the general power granted to the Court by s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) which empowers this Court to “make orders of such kinds… as [it] … thinks appropriate”. In my view it is in the circumstances:

   a)clearly appropriate and in the interests of justice; and

   b)tending to the quick, inexpensive and efficient conduct of the Court’s business;

   that the application in this case be dismissed.

4. Accordingly, the orders of the Court will be as follows:

   a)The Application filed in this Court on 15 July 2014 is hereby dismissed.

   b)The Applicant is ordered to pay the First Respondent’s costs in the sum of $3,326.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 18 August 2016