FEDERAL COURT OF AUSTRALIA
DWN16 v Minister for Immigration and Border Protection [2018] FCA 2032
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. By reason of default in appearance, the application for an extension of time in which to file a notice of appeal be dismissed with costs.
2. The first respondent, through his solicitors, serve a copy of the reasons of today, together with a copy of the written submissions filed on behalf of the first respondent, upon the applicant.
THE COURT DIRECTS THAT:
3. Any application by the applicant to set aside today’s orders be listed before Chief Justice Allsop.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
ALLSOP CJ:
1 This is an application for an extension of time in which to file an application for leave to appeal against orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 25 November 2016 which affirmed the delegate of the delegate of the Minister not to grant the applicant a Protection (subclass XE-790 Safe Haven Enterprise) Visa.
2 The applicant is an Iranian who claims to fear persecution in Iran. I do not propose to deal with the matter fully, given the lack of appearance of the applicant today.
3 The counsel for the Minister, Ms Symons, sought that the matter be dismissed for want of appearance. That is an appropriate course to take. I do so under r 5 of the Federal Court Rules 2011 (Cth) in default of appearance, rather than under r 36 dealing with appeals. Of course, as an order made in the absence of the party, the applicant will have the entitlement to seek to have the order set aside and his application heard. If such an application is made, the matter should be directed to me, as I have read into the material prior to today.
4 These reasons will be settled and provided to the Minister and I will direct that the Minister, through his solicitors, serve these reasons upon the applicant at the address for service and/or the last known address of the applicant. The applicant needs to understand that if the Court is to set aside the order made in his absence, it will need to be persuaded that there is some utility, that is, usefulness, in the appeal. That means that the applicant needs to show some error in the approach of the primary judge in the Federal Circuit Court and, to the extent necessary, some error in the approach of the Immigration Assessment Authority.
5 A starting point for any such persuasion and any such mission would be dealing with the submissions filed on behalf of the first respondent. Such submissions, though no doubt already served, should be served on the applicant with a copy of these reasons.
6 Therefore, the orders I make are:
(1) By reason of default in appearance, the application for an extension of time in which to file a notice of appeal be dismissed with costs.
(2) The first respondent, through his solicitors, serve a copy of the reasons of today, together with a copy of the written submissions filed on behalf of the first respondent, upon the applicant.
(3) I direct that any application by the applicant to set aside today’s orders be listed before myself.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. |
