MZAHB v Minister for Immigration and Border Protection [2016] FCA 1443

FEDERAL COURT OF AUSTRALIA

Appeal from:	Application for Extension of Time: MZAHB v Minister for Immigration & Anor [2015] FCCA 775

File number:	VID 623 of 2016

Judge:	LOGAN J

Date of judgment:	16 November 2016

Catchwords:	MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – application for an extension of time to seek leave to appeal – failure by applicant to appear – movement records of Immigration Department indicated applicant had departed Australia – application dismissed for want of prosecution PRACTICE AND PROCEDURE – application for an extension of time to seek leave to appeal – applicant did not appear – movement records of Immigration Department indicates applicant has departed Australia – application dismissed for want of prosecution

Legislation:	Migration Act 1958 (Cth)

Date of hearing:	16 November 2016

Registry:	Victoria

Division:	General Division

National Practice Area:	Administrative and Constitutional Law and Human Rights

Category:	Catchwords

Number of paragraphs:	4

Counsel for the Applicant:	The applicant did not appear

Solicitor for the Respondents:	DLA Piper

ORDERS

		VID 623 of 2016

BETWEEN:	MZAHB Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	16 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs of and incidental to the application for an extension of time to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1 On 10 June 2016, the applicant filed an extension of time application upon which he sought an extension of time within which to appeal against a judgment delivered in the Federal Circuit Court of Australia on 21 April 2016. That court had dismissed an application by the applicant for the judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 27 May 2014. The Tribunal had affirmed a decision of a delegate of the present first respondent, the Minister for Immigration and Border Protection (Minister), not to grant to the applicant that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) Visa.

2 When the application was called on for hearing today at the appointed time, there was no appearance by or on behalf of the applicant. That absence of appearance on behalf of the applicant was confirmed by a report from the court officer, following the calling of the name of the proceeding three times in the public area outside the court room. Upon that confirmation, the Minister applied for the dismissal of the application on the basis of that failure to appear.

3 Read in support of that application was an affidavit, the annexures to which comprised various records maintained in the course of the public administration of the Minister’s department. Materially, they evidenced that the applicant had departed from Australia on 23 June 2016. The absence of any appearance today in person by the applicant is entirely consistent with such a departure. That departure terminated the bridging visa which had until then informed the basis of the applicant’s lawful presence in Australia.

4 That departure and the absence of an appearance today are indicative that the applicant has failed to prosecute his application for an extension of time. That being so it should be dismissed. The Minister sought and is entitled to an order for costs in respect of that dismissal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 30 November 2016

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