AWS16 v Minister for Immigration

[2019] FCCA 2816

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWS16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2816

Catchwords:
MIGRATION – Absence of applicant after substituted service – non-appearance of applicant – application for dismissal of the applicant’s claim in the absence of the applicant – application granted.

Legislation:

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

Applicant: AWS16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 781 of 2016

Judgment of: Judge Egan

Hearing date: 24 September 2019

Date of Last Submission: 24 September 2019

Delivered at: Brisbane

Delivered on: 24 September 2019

REPRESENTATION

Applicant: No appearance

Solicitor for the First Respondent: Mr J. Simpson of Clayton Utz

ORDERS

1. The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. Pursuant to the provisions of Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application for review filed on 18 April 2016 be dismissed due to the non-appearance of the Applicant.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 781 of 2016

AWS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter came before the Court in Melbourne on 11 September 2019.  There was no appearance on that day by the applicant. The Court was not satisfied that the applicant had received a notice of listing letter from the Melbourne registry of the Court, and hence an application for dismissal of the applicant’s claim was adjourned for hearing today before this Court. The matter was so adjourned after an order was made by this court for substituted service of all relevant filed documentation, so as to enable the applicant to have notice of the adjourned hearing today, and for the applicant to appear by video link to Brisbane via a court in Melbourne.

2. After the matter was called three (3) times outside each of the courts listed for the matter in both Melbourne and Brisbane, it was noted that there was no appearance by, or on behalf of, the applicant.

3. Mr Simpson appeared on behalf of the first respondent. In the light of the non-appearance of the applicant, he made application for dismissal of the proceeding, pursuant to the provisions of Rule.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), namely on the basis that the applicant was an absent party when the matter was called today.

4. A notice of listing of today’s matter was sent to the parties by the Melbourne registry of the Federal Circuit Court. That notice of listing was sent via email to the applicant on 19 September 2019 to the applicant’s nominated email address for service. In addition, Mr Simpson referred to the Court to an affidavit of Jessica Louise Straube, filed on 23 September 2019, which was an affidavit of service of all of the documents referred to in the order made by the Court on 11 September 2019.

5. The Court is satisfied that substituted service, in accordance with the terms of the order made on 11 September 2019, has occurred. In those circumstances, the Court is satisfied that notice of today’s hearing has appropriately been given to the applicant. The notice of listing email and letter sent to the applicant is marked Exhibit 1. 

6. Accordingly, the Court is satisfied that all relevant documentation properly to be served on the applicant has been served. In addition, the Court has been advised by an associate in Melbourne that the Court listed the hearing of the matter in Melbourne. The court was informed by that associate that the name of the matter was called three times, with the result that there was no appearance on behalf of the applicant. Similarly, the associate in Brisbane called the matter three times in the precincts in this Court, and there was no appearance on behalf of the applicant.

7. In all of the circumstances, therefore, it is appropriate that orders be made on the application of the first respondent. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date:  7 October 2019