Beb17 and Ors v Minister for Immigration and Anor (No.2)

[2019] FCCA 356

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEB17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 356

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicants 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

First Applicant: BEB17

Second Applicant: BEV17

Third Applicant: BEW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 826 of 2017

Judgment of: Judge Emmett

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Sydney

Delivered on: 11 February 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicants

Solicitors for the Respondents: Mr Tom Hillyard
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 826 of 2017

BEB17

First Applicant

BEV17

Second Applicant

BEW17

Third 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 Application in a Case, filed by the applicant on 10 December 2018 seeking reinstatement of the original proceeding, filed on 21 March 2017, seeking judicial review of a decision of the Administrative Appeals Tribunal dated 21 February 2017, be dismissed by reason of a failure of the applicants to attend today’s scheduled hearing pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. On the filing of the initial substantive application for judicial review, the first applicant attended a directions hearing before a Registrar of this Court on 6 July 2017. On that occasion, the applicants were given leave to file and serve an amended application, any further evidence and submissions in support of their application. In addition, the applicants were provided with the contact details of legal services providers and translating and interpreting services in documents headed in their own language.

3. At that directions hearing, the matter was set down for final hearing on 13 November 2018 at 10:15am before me. The applicants failed to attend the hearing on 13 November 2018 and on that date orders were made by me dismissing the applicants’ application for judicial review commenced by way of application, filed on 21 March 2017, by reason of the failure of the applicants to appear at the scheduled hearing (BEB17 and Ors v Minister for Immigration and Anor [2018] FCCA 3281 (“BEB17”)). 

4. The application filed on 10 December 2018, whilst it does not seek reinstatement, I understand to be an Application in a Case for reinstatement of that initial substantive application. The orders sought state as follows:

   “1. I did not receive any notification of rescheduled court time.

   2. I have prepared most documents for Federal Circuit Court.

   3. I beg to one more chance because I fear to go back to China.”

   (Errors in original)

5. The statement in those orders that the applicants did not receive any notification of the rescheduled court time, does not accord with the reasons provided by me in BEB17, in which I stated that the matter was set down at the directions hearing for final hearing on the 13 November 2019 at 10:15am and that the correct address of the courtroom was provided.

6. I noted in those reasons that by 11:00am the matter had been called on at least two occasions, the most recent being within the last 10 minutes. There had been no communication received from the applicants, either by the first respondent’s solicitors or the Court seeking an adjournment of that final hearing date or for any other reason. 

7. In the circumstances, it does not appear that there was any rescheduling of court time and the applicants’ explanation, such as it is, for their failure to appear on 13 November 2018 would not appear to be accurate and is certainly not satisfactory.

8. The Application in a Case, filed on 10 December 2018, was set down for hearing today at 9:30am before me. It is now 10:30am. The matter has been called on at least two occasions outside, most recently being in the last five minutes. 

9. Again, there has been no communication received from the applicants either by the first respondent’s solicitors or by the Court. I do note that the Application in a Case today was supported by an affidavit of two of the applicants, both saying that they did not receive any notification of a rescheduled court time.  As stated above, there was no rescheduled court time.

10. Further, the first respondent’s solicitor, Mr Hillyard, tendered a letter dated 4 February 2019, marked “Exhibit 1R”, on the applicants’ application this morning. Exhibit 1R is from the first respondent’s solicitors and is addressed to the applicant at the applicants’ address for service as identified in the Application in a Case. Exhibit 1R enclosed, by way of service evidence, submissions relied on by the first respondent. It also provided the details of the hearing this morning at 9:30am before me and the location of the courtroom. Exhibit 1R also informed the applicants that if they did not attend this morning, the first respondent would seek orders that the application be dismissed with costs.

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

12. Accordingly, the orders sought by the first respondent are appropriate and the Application in a Case should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  18 February 2019