BHH15 v Minister for Immigration & Border Protection

[2015] FCCA 2633

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHH15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2633

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & 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

Applicant: BHH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1890 of 2015

Judgment of: Judge Emmett

Hearing date: 23 September 2015

Date of Last Submission: 23 September 2015

Delivered at: Sydney

Delivered on: 23 September 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Ms Brooke Griffin and Ms Ramya Krishnan
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1890 of 2015

BHH15

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 pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 8 July 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 6 August 2015, the applicant attended a direction’s hearing before a Registrar of this Court, with the assistance of an interpreter. On that occasion, the applicant was given leave to file and serve an Amended Application, any further evidence and written submissions in support of the application. At the request of the first respondent, the matter was set down for hearing today at 9:30am pursuant to r.44.12 of the Rules, on the basis that the application did not disclose an arguable case for the relief claimed.

3. The matter was called several times before lunch today and there was no appearance by or on behalf of the applicant. However, when the matter was last called, the solicitor for the first respondent, Ms Krishnan, indicated to the Court that she had received a telephone call from the applicant this morning. I indicated to the solicitor that I was reluctant to hear evidence from the Bar table about the substance of that telephone call and that I proposed to stand the matter down until 2:15pm today to give Ms Krishnan an opportunity to put on some evidence about the substance of that telephone call.

4. Ms Krishnan then prepared an affidavit, affirmed today, in which she deposed to the conversation that she had had with the applicant at 10:20am this morning. The substance of that conversation is at paragraphs 8 and 9 of Ms Krishnan’s affidavit, which are as follows:

   “8. At approximately 10:20am, with the assistance of a Mandarin interpreter, I called the applicant on the telephone number identified in the application for review. Through the interpreter, I had a conversation with the applicant to the following effect:

   Me: Are you aware that your matter is listed for hearing this morning?

   The applicant: No, I had forgotten.

   Me: Your matter was listed for hearing at 9:30am this morning. Do you intend to attend Court for the hearing?

   The applicant: I don't know. I am in Lidcombe.

   9. The applicant then handed his phone to a woman. Through the interpreter, I had a conversation with the woman to the following effect:

   Me: Who are you?

   Woman: I am [the applicant's] wife.

   Me: Your husband's matter was listed for hearing this morning at 9.30am. I was asking your husband whether he intended to attend Court for that hearing.

   Woman: We will need to consult our migration agent.

   Me: If you husband does not attend Court, we will seek dismissal of his matter for non-appearance.

   Woman: Should we attend Court?

   Me: That is a matter for your husband, but, if he does not attend, we will seek dismissal of his matter.

   Woman: Do we need to make a decision now?

   Me: That is a matter for your husband. What do you wish me to tell the Court?

   Woman: Ok, we won't be attending.”

5. When the matter resumed at 2:15pm this afternoon, the first respondent was represented by Ms Griffin. Ms Griffin called evidence from Ms Krishnan, who gave evidence of two further conversations that she had with the applicant and a female purporting to be the applicant’s wife this afternoon.

6. The substance of the oral evidence of Ms Krishnan was that, at about 1:00pm, she received a missed call on her mobile phone. She recognised the number as the applicant’s number. She rang that number and told the person on the other end of the phone, who identified himself as the applicant, that the hearing this morning had been stood over until 2:15pm and she gave him the location and address of the Courtroom. Ms Krishnan said that she was then put on to a female, who identified herself as the applicant’s wife. Ms Krishnan said that she then provided the same details to that person and that that person had responded “Okay.”

7. Ms Krishnan then gave evidence that at 1:50pm, she noticed she had a missed call on her landline at work. She rang back that number and the same female answered the phone and introduced herself as the wife of the applicant, and said that they might not be able to attend Court because they were in hospital, that she was pregnant and could they have another date.

8. Ms Krishnan said that she said to that person that the applicant should contact the Court immediately. Ms Krishnan provided to that person the telephone number of my Chambers in order to enable her to make an urgent adjournment application, should she wish to do so. There has been no such application made by the applicant or anyone on his behalf.

9. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and has, for whatever reason, chosen not to attend, or to seek an adjournment.

10. I am satisfied that it is appropriate to make the orders sought by the first respondent.

11. Accordingly, the proceeding before this Court, commenced by way of application filed on 8 July 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

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

Associate:

Date: 30 September 2015