AQL16 v Minister for Home Affairs [2019] FCA 580

FEDERAL COURT OF AUSTRALIA

AQL16 v Minister for Home Affairs [2019] FCA 580 Appeal from: Application for extension of time: AQL16 v Minister for Immigration and Anor [2018] FCCA 1665

File number: VID 631 of 2018

Judge: BROMBERG J

Date of judgment: 15 April 2019

Catchwords: MIGRATION – where the applicant failed to attend – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)

Cases cited: Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394

Date of hearing: 15 April 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: The Applicant did not appear

Solicitor for the First Respondent: Mr van der Westhuizen of DLA Piper Australia

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS VID 631 of 2018

BETWEEN: AQL16 Applicant

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BROMBERG J DATE OF ORDER: 15 APRIL 2019

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

BROMBERG J: 1 This is an application for an extension of time in which the applicant seeks additional time to file a Notice of Appeal from a judgment of the Federal Circuit Court of Australia delivered on 23 April 2018 and published as AQL16 v Minister for Immigration and Another [2018] FCCA 1665. 2 By that judgment, the primary judge dismissed the applicant's application for judicial review of the decision of the second respondent ("the Tribunal"), to affirm the decision of a delegate of the first respondent ("the Minister"), to refuse the applicant a protection visa. 3 As far as the Court is aware, the applicant is not legally represented. The appeal was listed for hearing commencing this morning at 11.30 am. When the matter was called on for hearing, there was no appearance by the applicant. 4 The Minister seeks the dismissal of the application. The Minister relies on an affidavit of Ms Garreffa affirmed on 15 April 2019. On the basis of the matters set out in that affidavit, I am satisfied that the applicant was made aware of the hearing date for his application and the consequences of his non-attendance at the hearing. The Minister also relies on an affidavit of Mr van der Westhuizen affirmed on 10 April 2019. That affidavit refers to information on the database of the Department of Home Affairs. On the basis of that information, I am satisfied that the applicant is no longer in Australia, having departed on 15 October 2018, and that the applicant does not hold a visa which would permit him to re-enter Australia. 5 As was outlined by Gray J in Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 at [10], there are three possible courses open to me owing to the non-appearance of the applicant. I could adjourn the hearing of the application and provide the applicant with a further opportunity to attend at a later time. I could exercise a power given to the Court by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the appeal for the failure of the applicant to attend the hearing. Alternatively, I could proceed to attempt to deal with the application on its merits in the absence of the applicant. 6 For the reasons given at [11]-[13] of Al Mamun by Gray J, I take the view that in the circumstances the interests of justice would be best served by making an order dismissing the appeal on the ground of a failure of the applicant to attend the hearing. 7 Accordingly, I will make an order dismissing the application and further order that the applicant pay the Minister's costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.