ASZ16 v Minister for Immigration and Border Protection [2017] FCA 1629

FEDERAL COURT OF AUSTRALIA

ASZ16 v Minister for Immigration and Border Protection [2017] FCA 1629 Appeal from: Application for extension of time: ASZ16 v Minister of Immigration [2017] FCCA 1617

File number: NSD 993 of 2017

Judge: RARES J

Date of judgment: 16 November 2017

Legislation: Migration Act 1958 (Cth) ss 412, 494B, 494C

Cases cited: ASZ16 v Minister of Immigration [2017] FCCA 1617

Date of hearing: 16 November 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 15

Counsel for the Applicant: The Applicant did not appear

Counsel for the First Respondent: Mr T Liu

Solicitor for the First Respondent: Clayton Utz

Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS NSD 993 of 2017

BETWEEN: ASZ16 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: RARES J DATE OF ORDER: 16 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. 2. The applicant pay the first respondent's costs fixed in the sum of $1,756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for an extension of time of one day in which the applicant seeks leave to appeal from the decision of the Federal Circuit Court to dismiss his application to set aside the decision of the Administrative Appeals Tribunal, given on 29 February 2016, that it did not have jurisdiction to review the decision of the Minister's delegate given on 24 September 2015 to refuse to grant a protection visa to the applicant: ASZ16 v Minister of Immigration [2017] FCCA 1617. 2 On 21 July 2017, a Registrar gave directions for the preparation of the application for hearing in the Full Court sittings commencing on 30 October 2017. 3 On 21 July 2017, the Court's national operations team emailed the applicant at his Hotmail.com email address using, however, a lowercase x character in that part of his username, that he included in his application and affidavit of 13 June 2017 as commencing with an uppercase letter X. Thus, the username in the applicant's email address, in the form which he supplied, commenced with an uppercase letter X, whereas the national operations team commenced typing the address to which the email for him was sent with a lowercase x. And, similarly, on 10 October 2017, when the national operations team emailed the parties with details of the listing today before me, the email to the applicant was addressed to an email address that commenced with a lowercase x. 4 On 9 November 2017, the solicitors for the Minister emailed a letter to the applicant. The letter referred to the hearing fixed in the Federal Court today at 9.30am and included the Minister's written submissions. It did not mention that it was listed before me. The email was addressed to the applicant's username as it appeared in his application and affidavit, namely, commencing with an uppercase X. 5 When the matter was called on this morning, the applicant did not appear. The Court has tried to telephone him twice on his telephone number given in his application and affidavit, but he has not answered. It is not clear whether email usernames forming part of the email addresses of persons with accounts at Hotmail.com, such as that of the applicant, are case sensitive in the username part. There is no evidence about that matter or what, if any, rules apply to govern the use of case sensitive characters in usernames for these accounts that the Minister has been able to identify. 6 Nonetheless, after I adjourned to make enquiries of the national operations team whether there was any record of the emails that it had sent to the applicant not having been delivered, I was informed by a member of the national operations team that if an email sent by them to an address is reported by the Court's email service as being one that could not be delivered or had bounced back, that circumstance is recorded in the electronic court file. The electronic court file in this matter does not include any suggestion that the national operation team emails of 21 July 2017 or 10 October 2017 encountered any difficulty in being received at the applicant's email account. Moreover, I am satisfied that the applicant did receive the email and letter from the Minister's solicitors of 9 November 2017 notifying him of today's hearing, albeit not specifying my name as the judge before whom it would be held. 7 In all the circumstances, I am satisfied that the applicant has been informed of today's hearing and it is therefore appropriate for me to continue with it in his absence. That is the more so because the case which the applicant wishes to bring if he were allowed to file a notice of appeal is manifestly hopeless.