FEDERAL COURT OF AUSTRALIA
AHT15 v Minister for Immigration and Border Protection [2015] FCA 1215
IN THE FEDERAL COURT OF AUSTRALIA | |
Applicant | |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL) Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent in the proceeding.
2. The applicant be granted leave to appeal from the judgment and orders of the Federal Circuit Court of Australia, delivered on 23 April 2015.
3. The appeal be allowed.
4. The orders made by the primary judge on 23 April 2015, including as to costs, be set aside.
5. The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the application dated 27 March 2015 in that Court.
6. The first respondent pay the appellant’s costs of the proceeding (including the application for leave to appeal and the appeal) as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 504 of 2015 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | AHT15 Applicant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL) Second Respondent |
JUDGE: | GRIFFITHS J |
DATE: | 10 November 2015 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 The applicant filed an application for leave to appeal on 6 May 2015 against a judgment of Judge Street delivered on 23 April 2015 in the Federal Circuit Court of Australia (the FCCA). The applicant filed an affidavit bearing the same date in support of her application. She complained that the primary judge erred in dismissing her application summarily and without giving her an opportunity to be heard and file an amended application.
2 On 10 July 2015, the Minister’s solicitors wrote to the applicant and indicated that the Minister was prepared to enter into consent orders which would result in:
(a) leave to appeal being granted;
(b) the appeal being allowed;
(c) setting aside the orders made on 23 April 2015;
(d) remitting the matter to the FCCA, differently constituted, for determination of the applicant’s claims;
(e) the first respondent paying the appellant’s costs of the proceeding, including the application for leave to appeal and the appeal itself.
3 In that letter, the Minister accepted that the primary judge had erred in summarily dismissing the proceedings of his own motion, at the first Court date and without notice to the applicant, in the manner and circumstances identified in Shrestha v Migration Review Tribunal [2015] FCAFC 87 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, and that to do so was procedurally unfair. That concession was properly made.
4 On 27 July 2015, the Court Registry wrote to the applicant at her last known address and indicated that if she did not consent to the proposed orders a directions hearing in her matter would be heard on 13 August 2015.
5 There was no appearance by the applicant at the directions hearing on that day and the Minister’s lawyers were unable to contact the applicant prior to that time. In the applicant’s absence, I listed her application to be heard today.
6 There was no appearance by the applicant at the hearing today. I am satisfied, however, that the orders proposed by the Minister are appropriate. I will make those orders, including an order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent in the proceedings.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
