SZWCW v Minister for Immigration

[2019] FCCA 2561

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCW v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2561

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – order for dismissal for non-appearance under Rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

Legislation:

Migration Act 1958 (Cth)

Applicant: SZWCW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 378 of 2015

Judgment of: Judge Dowdy

Hearing date: 22 August 2019

Delivered at: Sydney

Delivered on: 22 August 2019

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the First Respondent: Ms K. Gawidziel

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 17 February 2015 is dismissed, pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $1,367.

3. In the event that the Applicant files an Application in a Case to set aside the dismissal today of his Application he is to be prepared on the first return date of his said Application in a Case:

   (a)to run his Application in a Case to set aside the dismissal;  and

   (b)to run his substantive application for relief with respect to the Tribunal decision below.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 378 of 2015

SZWCW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. In this matter I am hearing an application by the First Respondent for dismissal in the absence of a party, being the Applicant, who by Application filed in this Court on 17 Febraury 2015 sought judicial review of the decision of the Refugee Review Tribunal in relation to an application for a Protection (Class XA) (Subclass 866) visa, in the following context. 

2. I was approached some 20 minutes ago by his Honour Judge Street in Chambers, who asked me to deal with two matters, being this matter and another one, where the proceeding had been listed before him for directions against the following background. His Honour had on 12 March 2015 summarily dismissed the proceeding. Then on 10 November 2015 his Honour Griffiths J in the Federal Court of Australia, by consent, set aside Judge Street’s dismissal of the proceeding, and remitted it for rehearing to this Court differently constituted, and Griffiths J gave short reasons for judgment in that respect, bearing Medium Neutral Citation [2015] FCA 1217.

3. On remittal back to this Court, the matter came before Registrar Morgan on 4 February 2016, and the Applicant did not appear, so the Application was dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). However, it transpired to be the case that the Registrar did not have the power to make that order, so on 24 June 2019 Judge Street made an administrative order for more abundant caution, setting aside Registrar Morgan’s dismissal, and listing the matter for directions today at 2:15pm before him.

4. There are other procedural orders that were made by Judge Street for the preparation of the matter for hearing. However, the Applicant does not appear today. Ms Gawidziel, who appears for the Minister from the Australian Government Solicitor, relies on an affidavit of Mr Cameron O’Sullivan affirmed on 16 August 2019, which I have admitted and read and will be marked Exhibit A on the application for dismissal. That affidavit does not strictly prove that notice was given by the letter dated 2 August 2019 attached to the affidavit, but I am prepared to act on the basis that proper notice has been given to the Applicant of today’s hearing date, when the Court’s own records in accordance with the Registry’s practice indicate that a letter was sent by post to the last known address on the Court’s file giving such notice.

5. Further, I have had my Associate in open Court seek to ring the Applicant twice on the mobile telephone number given by him on his Application filed in this Court initiating the proceeding, but he did not respond. Accordingly, I will make a dismissal order.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  16 September 2019