Ajn15 v Minister for Immigration

[2018] FCCA 2990

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJN15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2990

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Secretary of the Department of Immigration that Australia did not have non-refoulement obligations to him – non-appearance by the applicant at final hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: AJN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

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

File Number: PEG 136 of 2015

Judgment of: Judge Dowdy

Hearing date: 18 October 2018

Delivered at: Sydney

Delivered on: 18 October 2018

REPRESENTATION

No appearance by or for
the Applicant.

Counsel for the First Respondent: Ms A. Lucchese

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The Application filed in this Court on 10 April 2015 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant is to pay the First Respondent’s costs of and incidental to the Application in the sum of $5,500.

3. In the event that the Applicant files an Application in a Case to set aside the dismissal today of his Application, he is to be prepared, on the first return date of his said application:

   (a)to run his application to set aside the dismissal; and

   (b)to run his substantive Application for relief with respect to the International Treaties Obligations Assessment below.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 136 of 2015

AJN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. This matter was set down for hearing before me today to commence at 10:15am as long ago as 10 November 2017, when the Applicant appeared in person and he was made fully aware that this matter was set for final hearing today.  It is now nearly a quarter to 11, the matter being set down to commence at 10:15 am, and the Applicant has not appeared.  He was called a few minutes ago outside the Court three times and does not appear.  He obviously, having been present when the matter was set down for hearing, knew that it was set down for hearing today.

2. Further, Ms Lucchese, who appears for the Minister, has shown me a copy of an email sent yesterday afternoon at 4:06pm which reminded the Applicant that the matter was set down for hearing today at 10:15am and advised that if he did not attend, the Minister would seek orders from the Court that his Application be dismissed and that he pay the Minister’s legal costs of the proceeding.  That email also attached the Minister’s Outline of Submissions in this case.

3. The reason for that email was that under cover of a letter dated 11 October 2018, the Minister’s lawyers had by post sent to the Applicant the Minister’s Outline of Submissions, but there was concern because there was a misstatement of the address, that misstatement being 17 Preview Crescent, Bella Vista instead of the correct address, being namely 17 Bridgeview Crescent, Bella Vista.  The letter covering the Outline of Submissions was addressed to the Applicant.

4. Notwithstanding that misstatement of address, the evidence seems to be that the document and the letter were delivered to the Applicant, and it may well be that Australia Post worked out that there had been this minor error in the addressing of the letter.  Be that as it may, the Applicant was here in person when the matter was set down for hearing.  It was his obligation today to be present. No contact has been received by the Court from him, nor has he contacted the Minister’s lawyers. In those circumstances, Ms Lucchese most properly asked for the proceeding to be dismissed for absence of appearance, and I now make orders in that regard. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 25 October 2018