FEDERAL COURT OF AUSTRALIA

BDL16 v Minister for Immigration and Border Protection [2018] FCA 1259

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these Orders and the Reasons for Judgment in support of these orders are made and published from Chambers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    In these proceedings the appellant “seeks leave to appeal” from a decision of the Federal Circuit Court of Australia (the “primary Court”) dismissing an application for the issue of the constitutional writs in relation to a decision of the Immigration Assessment Authority (the “IAA”) made under Part 7AA of the Migration Act 1958 (Cth) (the “Act”) affirming a decision of the delegate of the Minister not to grant the appellant a protection visa under the Act.

2    The appellant is an ethnic Tamil from the Batticaloa District in Sri Lanka. He arrived at Christmas Island as an unauthorised maritime arrival on 16 August 2012. The appellant lodged an application for a subclass 866 Permanent Protection visa, under the Act. However, he was notified by the Department of Immigration and Border Protection by letter dated 7 September 2015 that “as you arrived in Australia unlawfully and you were affected by one or more application bars in the Migration Act, [your] application was invalid and cannot be processed any further”. The appellant subsequently lodged an application for a Safe Haven Enterprise (subclass 790) visa under the Act on 16 October 2015. He was invited to attend an interview before the delegate on 18 December 2015.

3    On 4 March 2016, the delegate wrote to the appellant informing him of the decision to refuse the grant of the visa and noting that the decision was a fast track reviewable decision under the Act, and as such, the appellant’s case would be referred to the IAA for review.

4    On 7 March 2016, the IAA wrote to the appellant confirming that the matter had been referred to it for review. On 12 April 2016, the IAA affirmed the decision not to grant the referred appellant a protection visa and notified him of that fact that same day.

5    On 30 June 2016, the appellant sought the grant of the constitutional writs in the Federal Circuit Court exercising jurisdiction under s 476 of the Act.

6    The grounds of appeal contained in the Application were as follows:

An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.

A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.

A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.

An injunction restraining the Minister, by himself or by his Department, officers, delegates, or agents, from making the future decision or taking the other action the subject of the proceedings.

(state precisely each other order sought by way of final relief)

Costs

7    The cover sheet and orders page of the Judgment of Judge Street (BDL16 v Minister for Immigration & Anor [2017] FCCA 1514) records that his Honour delivered judgment on 30 June 2017 dismissing the appeal. The reasons for judgment were certified on 21 July 2017.

8    The appellant has appealed to this Court. By his notice of appeal he also seeks leave to appeal from the Judgment and Orders of the primary Court. However, the notice of appeal was filed in compliance with the Federal Court Rules 2011 and thus leave to appeal is not required. The appellant seeks an order that the Orders of the primary judge are to be set aside and an order remitting the matter to the primary Court for determination of the claims according to law. The notice of appeal filed on 17 July 2017 asserts that the primary Court fell into “jurisdictional error” in dismissing his case. The appellant contends that no reasons for dismissing the proceeding in the primary Court had been published at the time of filing the notice of appeal (thus making it not possible for him to formulate precise grounds of appeal). The appellant asserted that details of the grounds of appeal would be provided once reasons were published.

9    The reasons for judgment were not made available until 21 July 2017. No amendment has been made to the proposed notice of appeal since publication of the reasons of the primary Court.

10    The appeal was listed before me for hearing on 21 May 2018.

11    However, on 10 May 2018 an email was sent to Chambers attaching an affidavit of Ms Bernadette Marie Rayment, a solicitor employed by Sparke Helmore lawyers, the lawyers acting for the First Respondent. That affidavit deposes to the following facts. Ms Rayment says that her instructing officer at the Department of Immigration and Border Protection (the “Department”) sent an email to her attaching screenshots from the Department’s computer database confirming that the appellant had departed Australia on 8 January 2018. The consequence of the appellant having left Australia is that his Bridging Visa Class E, under the Act, ceased immediately upon his departure with the result that the appellant does not have a “right of re-entry” into Australia. The email from Ms Rayment requested, in light of the appellant’s departure from Australia, that the Minister be excused from preparing written submissions. I excused the Minister from preparing written submissions, so as to avoid unnecessary costs being incurred, and the listing date was vacated.

12    All communications to and from Sparke Helmore were copied to the appellant. No legal representative has filed a notice of acting, on behalf the appellant. Thus, the appellant is self-represented. The appellant has failed to file any document other than the notice of appeal. In the time that has passed since the listing date was vacated, the appellant has not made any contact with the Court or otherwise taken any step to pursue the appeal. No doubt, that is because the appellant has left Australia.

13    Having regard to the above circumstances, I am satisfied that the appellant has abandoned the appeal by leaving Australia. The proceeding is to be dismissed for want of prosecution pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth).

14    The appeal is to be dismissed with costs.

Associate:

Dated:    21 August 2018