Apx16 v Minister for Immigration

[2017] FCCA 366

FEDERAL CIRCUIT COURT OF AUSTRALIA

APX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 366

Catchwords:
MIGRATION – Non-appearance at final hearing by Applicant – Application dismissed with costs pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: APX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 655 of 2016

Judgment of: Judge Dowdy

Hearing date: 28 February 2017

Delivered at: Sydney

Delivered on: 28 February 2017

REPRESENTATION

No appearance for the Applicant.

Counsel for the Respondents: Ms L. Buchanan

Solicitors for the Respondents: Australian Government Solicitor

THE COURT ORDERS AS FOLLOWS:

1. Both the original application filed in this Court on 22 March 2016 and the amended application filed in Court on 20 April 2016 are dismissed, pursuant to r.13.03C 1(c) of the Federal Circuit Court Rules 2001 (Cth), because the Applicant is an absent party.

2. The Applicant to pay the First Respondent’s costs of the proceeding, in the sum of $3200.

3. In the event that the Applicant were to bring an Application in a Case to set aside my dismissal of his application today, that on the return date of that Application in a Case, he be ready to run and argue both his Application in a Case and his substantive application on a final hearing basis.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 655 of 2016

APX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

EX TEMPORE

1. In this matter, the Applicant appeared before the Court on directions on 15 April 2016, when he entered into consent orders with the First Respondent to get the matter ready for hearing, and the final hearing of his application was set down for today at 10.15 am. 

2. This morning, Ms Buchanan appears for the First Respondent but there has been no appearance by the Applicant.  It is now 25 minutes past 10 o’clock, and the matter was called outside Court three times about 10 minutes ago.  So because the Applicant was here when the final hearing date was set down for today, on 15 April 2016, he knows well that the matter is for hearing today.  Further, after the directions hearing at 15 April 2016, the Minister sent a letter dated 26 April 2016 to the Applicant, reminding him that the final hearing was listed for today, at 80 William Street, and indeed warning that if he did not appear, orders may be sought that his application be dismissed with costs without further notice.

3. Then, in accordance with the procedural orders consented to on 15 April 2016, the First Respondent by letter dated 21 February 2017 sent to the Applicant a copy of his Submissions in this matter, and again reminded the Applicant that his application was listed for hearing today at 10.15 am, and again warning that if there was no appearance his application might be sought to be dismissed without further notice.  On the same date, an email was sent to the email address appearing on the amended application filed in Court on 20 April 2017, attaching the Minister’s Submissions and again advising that the matter was listed for today at 10.15 am before me, and that if there was no appearance the Minister might seek for dismissal of his application without further notice.

4. So there is no doubt in my mind that the Applicant knows about the hearing today.  I have not been advised by my Associates or anyone from the Registry that he has attempted to contact the Court, and I will now inquire from Ms Buchanan whether or not he’s contacted or sought to contact the Minister.

5. And Ms Buchanan responds in the negative. And so, in those circumstances, it is appropriate in my view to dismiss the application and the amended application both filed previously in this Court, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the Applicant is absent. And I will make an order to that effect.

6. The orders of the Court, therefore, are as follows:

   a)Both the original application filed in this Court on 22 March 2016 and the amended application filed in Court on 20 April 2016, are dismissed, pursuant to rule 13.03C 1(c) of the Federal Circuit Court Rules 2001 (Cth), because the Applicant is an absent party.

   b)I order the Applicant to pay the First Respondent’s costs of the proceeding in the sum of $3200.

   c)That in the event that the Applicant were to bring an Application in a Case to set aside the dismissal today of his proceeding, he be ready on the first return date before the Court of the Application in a Case to run both his Application in a Case and his substantive application. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  28 February 2017