AAB17 v Minister for Immigration

[2019] FCCA 1205

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAB17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1205

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: AAB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2 of 2017

Judgment of: Judge Emmett

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Sydney

Delivered on: 7 May 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Sophie Lloyd
(HWL Ebsworth)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2 of 2017

AAB17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 3 January 2017, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. The applicant attended a directions hearing before a Registrar of this Court on 18 May 2017. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of the application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. The matter was set down for final hearing today, 7 May 2019, at 10:15am.

3. On 2 May 2019, an email was sent from my chambers to the applicant and to the first respondent’s solicitor informing the parties that the hearing would commence today, 7 May 2019, at 11:00am rather than at 10:15am. The email noted that the New South Wales District Registry had left a voicemail on the applicant’s mobile notifying the applicant of the change of time and also that a letter was sent to the applicant in relation to the change of time that was addressed to the applicant at the applicant’s address for service in Australia.

4. The first respondent’s solicitor, Ms Lloyd, tendered a letter, dated 29 April 2019, from the first respondent’s solicitor addressed to the applicant at the applicant’s address for service and the applicant’s email address, marked exhibit 1R.

5. Exhibit 1R enclosed the first respondent’s submissions and reminded the applicant that the matter was listed for hearing today and provided the location of the court room. Exhibit 1R also informed the applicant that if the applicant did not attend the scheduled hearing, orders would be sought from the Court that the application be dismissed with costs.

6. The time is now 11:17am. There has been no appearance by or on behalf of the applicant. The matter has been called outside on at least two occasions, most recently being within the last five minutes. There has been no communication received from the Court or by the first respondent from the applicant either seeking an adjournment of today’s hearing or for any other reason. Further, I note that there has been no document filed by or on behalf of the applicant either in accordance with the directions made on 18 May 2017 or otherwise.

7. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend.

8. Accordingly, the orders as sought by the first respondent are appropriate, and the proceeding before this Court should be dismissed with costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  15 May 2019