Federal Court of Australia

CFS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 831

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application for an extension of time be dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    The applicant seeks an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) to appeal from a judgment of the Federal Circuit Court of Australia, as it was then known: CFS17 v Minister for Immigration & Border Protection [2021] FCCA 1973.

2    The primary judge dismissed the applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) in May 2017 which affirmed a decision made by a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa (protection visa).

3    The application for an extension of time was filed on 23 July 2021. On 9 September 2021, a Registrar of the Court made timetabling orders, requiring the filing of material in advance of the hearing.

4    The matter was allocated to me on 12 May 2023. My Associate wrote to the parties on 18 May listing the matter for hearing today, and again on 15 June and 20 July. No response was received from the applicant until 20 July, when a communication in the following terms was sent to the Court: “I Left the country on December 7 2022 now i am in india. Please do the needful”.

5    The applicant has not filed any material since filing his application for an extension of time and has sent no further correspondence to the Court. The matter was called outside the Court three times but there was no appearance, which was understandable in the circumstances.

6    The Minister applies for the application to be dismissed with costs pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That provision, read together with ss 25(2BA) and 25(2), provides that a single judge may make an order that an application for an extension of time within which to appeal be dismissed for failure of the appellant to attend a hearing in relation to the application. Rule 5.23 of the FCR also empowers the Court to dismiss a proceeding on default of a party.

7    I am satisfied it is appropriate to dismiss the proceeding in the light of the applicant’s default.

8    I am fortified in my view for two reasons.

9    First, having reviewed the papers, I am not satisfied there is any merit to the proposed grounds of appeal. The grounds provided in the draft notice of appeal were not raised below and are wholly unparticularised.

10    Secondly, and apparently fatally, the Minister read an affidavit of Mengqi Ren affirmed 26 April 2023, which revealed that: the applicant was granted a bridging visa in August 2021; that visa has now ceased; and the applicant left Australia in December 2022 and presently has no right to return. A criterion for the protection visa is that ‘the applicant must be in Australia”: cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth). Given the applicant is offshore, any appeal would be inutile.

11    Accordingly, I dismiss the application with costs.

Associate:

Dated:    21 July 2023