Aya16 v Minister for Immigration

[2018] FCCA 311

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 311

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), r.13.03C

Applicant: AYA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 971 of 2016

Judgment of: Judge Emmett

Hearing date: 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Sydney

Delivered on: 7 February 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Andrew Keevers (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 971 of 2016

AYA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 22 April 2016, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. The applicant attended a directions hearing before a registrar of this court on 8 June 2016 and, on that occasion, was given leave to file and serve an amended application, additional evidence by way of affidavit and submissions in support of the application. 

3. On 19 July 2016, the applicant filed an amended application. At the directions hearing on 9 June 2016, the matter was set down for hearing today before me at 10:15am. It is now 10:45am. There has been no appearance by or on behalf of the applicant. 

4. The solicitor for the first respondent, Mr Keevers, made inquiries of the first respondent and informed the Court that it was his instructions that the applicant had departed Australia on 20 January 2017. Mr Keevers undertook to file an affidavit to that effect forthwith. 

5. In the circumstances, I am satisfied that the applicant is aware of today’s proceeding and, for whatever reason, has chosen not to attend. 

6. Accordingly, the orders sought by the first respondent are appropriate.

7. The proceeding before this Court commenced by way of application filed on 22 April 2016 should be dismissed. 

8. The first respondent should be directed to file an affidavit as to the movement records of the applicant confirming that he did indeed leave Australia on 20 January 2018 or thereabouts.   

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

Associate: 

Date:  19 February 2018