Aod15 v Minister for Immigration

[2018] FCCA 3594

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOD15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3594

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), rr.13.03C, 44.12

First Applicant: AOD15

Second Applicant: AOE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1846 of 2016

Judgment of: Judge Emmett

Hearing dates: 22 August 2018, 5 December 2018

Date of Last Submission: 5 December

Delivered at: Sydney

Delivered on: 5 December 2018

REPRESENTATION

Applicants: No appearance by or on behalf of the applicants

Solicitors for the Respondents: Ms Charlotte Saunders
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1846 of 2016

AOD15

First Applicant

AOE15

Second 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 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”) that today's hearing be dismissed by reason of the failure of the applicants to attend today’s scheduled hearing.

2. The first named applicant attended a directions hearing before me on 12 March 2018, on which occasion the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of the application. On that occasion 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 then set down for a show cause hearing, pursuant to r.44.12 of the Rules, on 22 August 2018 at 10:15am before me.

3. On 22 August 2018, the applicant attended the hearing with the assistance of an interpreter. 

4. At that hearing the matter was set down for final hearing today at 10:15am before me and further directions were made for the filing and serving of further evidence by both parties.

5. In support of the application, the first respondent read the affidavit of Kim Mai Nguyen, affirmed 30 November 2018. Ms Nguyen’s affidavit deposes to the notification by the first respondent to the applicants at the applicants’ residential address, address for service and email address and provided written submissions in support of the first respondent’s position. 

6. The notifications provided to the applicants, details of the date, time and location of today’s hearing and informed the applicants that if the applicants do not attend, the first respondent may seek to have the matter dismissed with costs for non-appearance.

7. It is now 11:03am. The matter has been called on at least two occasions outside the courtroom, most recently being within the last 10 minutes. 

8. No document has been filed by or on behalf of the applicants in accordance with the directions made by the Court on 12 March 2018 and the further directions on 22 August 2018.

9. Further, there has been no communication received from the applicant, either by the first respondent’s solicitor or the Court, seeking an adjournment of today’s hearing or for any other reasons.

10. In the circumstances, I am satisfied that the applicants are aware of today’s hearing and, for whatever reason, have chosen not to attend.

11. Accordingly, the orders sought by the first respondent are appropriate, and the proceedings should be dismissed with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  6 December 2018