AOX15 v Minister for Immigration and Border Protection [2017] FCA 297

AOX15 v Minister for Immigration and Border Protection [2017] FCA 297

The applicant's application was dismissed because, by seeking his own removal from Australia without a right of re-entry and failing to provide a forwarding address or take steps to prosecute the application, he had consciously abandoned it; the Court was justified in dismissing it for non-appearance under r 35.33(1)(a)(i) FCR. The application was also futile because the applicant was outside Australia with no right of re-entry and could not be granted the protection visa sought.

Jurisdiction
Australia
Judgment Date
01 March 2017
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal Concerning Refusal of a Protection (class Xa) Visa / Application for Extension of Time and Leave to Appeal From a Judgment of the Federal Circuit Court of Australia
Outcome
Application for extension of time and leave to appeal dismissed; applicant ordered to pay the first respondent's costs fixed in the sum of $3,160.
Legal Topics
['protection Visa Refusal' 'extension of Time' 'leave to Appeal' 'non Appearance' 'removal From Australia' 'futility']
['migration' 'administrative Law'] ['protection Visa Refusal' 'extension of Time' 'leave to Appeal' 'non Appearance' 'removal From Australia' 'futility']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal Concerning Refusal of a Protection (class Xa) Visa / Application for Extension of Time and Leave to Appeal From a Judgment of the Federal Circuit Court of Australia

Legal Issues

  1. 1 ["Whether the application for extension of time and leave to appeal should be dismissed for the applicant's absence when called on for hearing." 'Whether the application should be dismissed as futile because the applicant had been removed from Australia at his own request without a right of re-entry and could not be granted a protection visa while outside Australia.' 'Whether costs should be awarded to the first respondent in a specified sum.']

Ratio Decidendi

The applicant's application was dismissed because, by seeking his own removal from Australia without a right of re-entry and failing to provide a forwarding address or take steps to prosecute the application, he had consciously abandoned it; the Court was justified in dismissing it for non-appearance under r 35.33(1)(a)(i) FCR. The application was also futile because the applicant was outside Australia with no right of re-entry and could not be granted the protection visa sought.

Court Disposition

Application for extension of time and leave to appeal dismissed; applicant ordered to pay the first respondent's costs fixed in the sum of $3,160.

Orders

  • ['The application for extension of time and leave to appeal, filed on 11 October 2016, be dismissed.' "The applicant pay the first respondent's costs, fixed pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth), in the sum of $3,160."]