The Trustee for the Rashays Macquarie Unit Trust v Minister for Immigration

[2020] FCCA 3578

FEDERAL CIRCUIT COURT OF AUSTRALIA

THE TRUSTEE FOR THE RASHAYS MACQUARIE UNIT TRUST v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3578

Catchwords:
MIGRATION – Administrative Appeals Tribunal – nomination which was the subject of a request for approval under reg 5.19 of the Migration Regulations 1994 (Cth) – no appearance on behalf of the applicant – no reasonable prospect of success– application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c)

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), reg 5.19

Applicant: THE TRUSTEE FOR THE RASHAYS MACQUARIE UNIT TRUST

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVFICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 700 of 2020

Judgment of: Judge Street

Hearing date: 16 December 2020

Date of Last Submission: 16 December 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

No appearance on behalf of the Applicant

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

Date of order: 16 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 700 of 2020

THE TRUSTEE FOR THE RASHAYS MACQUARIE UNIT TRUST

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVFICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 February 2020 affirming the decision of a delegate of the first respondent to refuse the nomination which was the subject of a request for approval under reg 5.19 of the Migration Regulations 1994 (Cth).

2. These proceedings were commenced on 20 March 2020. There are four grounds in the application.

3. This Court made orders fixing the matter for hearing today by video and/or audio link. The applicant’s legal representative Mr Michael Sanders who was identified as the solicitor on the record for the applicant has failed to appear.

4. The Court unsuccessfully endeavoured to contact Mr Sanders by telephone. The receptionist indicated that Mr Sanders had left the premises yesterday for an emergency. The receptionist indicated that she would put the Court through to her supervisor. The person who the Court was put through to identified herself as not being a partner or a professional colleague or lawyer but the secretary of Mr Sanders.

5. No communication has been sent to Court explaining why Mr Sanders has failed to appear. No step has been taken by any other member of the firm described as the No Borders Group to contact the Court to inform the Court of any issue in respect of which there is a reason why Mr Sanders has failed to attend.

6. The Court also takes into account that the initiating application in these proceedings is one that, despite the certification via the legal practitioner Mr Sanders appears to have no reasonable prospect of success.

7. It is in those circumstances that the first respondent moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Court is satisfied that the applicant’s legal representative was aware of the hearing date.

8. The Court is satisfied, taking into account the want of any reasonable prospect of success in the proceedings, that this is an appropriate manner in which to exercise the Court’s powers under r 13.03C(1)(c) of the Rules. Accordingly, the Court makes the following orders.

I certify that the preceding eight (8) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 12 February 2021