AJH15 v Minister for Immigration

[2017] FCCA 331

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJH15 v MINISTER FOR IMMIGRATION & ORS [2017] FCCA 331

Catchwords:
MIGRATION – No appearance by the applicant – application of r.13.03C(1)(c) – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act1958 (Cth), s.476

Applicant: AJH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: PEG 134 of 2015

Judgment of: Judge Street

Hearing date: 27 February 2017

Date of Last Submission: 27 February 2017

Delivered at: Sydney

Delivered on: 27 February 2017

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondents:

Mr K Eskerie

Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 134 of 2015

AJH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

KATHY BACKHOUSE, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”), being an application for declaratory and injunctive relief in respect of an International Treaties Obligation Assessment (“ITOA”) dated 17 March 2015. The proceedings were originally commenced in Western Australia, as the applicant was in detention. The applicant arrived in Australia in 2006 and became an unlawful person in 2009 until he was located and detained in 2013. The applicant was the subject of an alleged data breach disclosure which was the subject of the ITOA.

2. On 22 January 2016, orders were made by a judge in Western Australia adjourning the proceedings pending the outcome of a case that was on its way to the High Court. It appears that the applicant was released from detention, and on 10 August 2016, orders were made by a judge in Western Australia requiring the applicant to file a notice of address for service and transfer the matter to the Sydney registry.

Proceedings before this Court dated 27 February 2017

1. On 31 August 2016, orders were made by this Court fixing the matter for hearing and providing the applicant with the opportunity to appear by video link from Western Australia if the applicant was still in Western Australia. The Court also provided the applicant with an amended timetable in relation to filing documents. 

2. On 13 October 2016, this Court made orders vacating the hearing date and fixing the matter for hearing on 27 February 2017. The applicant was again the subject of a direction to file a notice of change of address for service within seven days, and the order earlier made for potential appearance by video link from Perth was not continued.  On 11 January 2017, orders were made providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. I am satisfied that the orders made by the Court came to the attention of the applicant. It is now past 10:40am, and the applicant has failed to appear. 

3. The first respondent provided copies of an email to the applicant dated 17 February 2017, as well as a letter sent on 20 February 2017. The letter was sent to an address provided to the first respondent in relation to the applicant’s transfer of the proceedings to New South Wales.

4. The first respondent has moved for the proceedings to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (“the Rules). The solicitor for the first respondent has indicated that there has been no communication from the applicant since the matter was transferred from Western Australia to this Court. From the court record, it is apparent that the applicant was well aware that the proceedings were transferred to New South Wales at the applicant’s request. I am satisfied that the applicant was aware that this matter was fixed for hearing.

Conclusion

1. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r13.03C(1)(c) of the Rules.

2. The application is dismissed.

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

Date: 2 March 2017