BHJ17 v Minister for Home Affairs

[2019] FCCA 668

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHJ17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 668

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: BHJ17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 921 of 2017

Judgment of: Judge Emmett

Hearing date: 14 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Sydney

Delivered on: 14 March 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Julian Pinder
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 921 of 2017

BHJ17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 Court Rules 2001 (Cth) that the proceeding before this Court commenced by way of application, filed on 28 March 2017, be dismissed by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support, the first respondent’s solicitor, Mr Pinder, read the affidavit of Jennifer Louise Strugnell affirmed 7 March 2019. Ms Strugnell’s affidavit attached screenshots from the Integrated Client Services Environment computer database, which I accept show that the applicant is presently not in Australia and that he departed Australia on 7 January 2019.

3. Mr Pinder also tendered two bundles of documents, the first marked Exhibit 1R being the first respondent’s record of the First Court Date. That document, inter alia, identified the applicant’s email address, such address not being previously provided on the applicant’s initiating application for judicial review, filed on 28 March 2017. The second bundle of documents, marked Exhibit 2R, disclosed correspondence sent by the first respondent’s solicitor to the applicant initially to the email address provided by the applicant on Exhibit 1R and attaching, relevantly, two documents, the first being a letter dated 8 March 2019 from the first respondent’s solicitor addressed to the applicant at both the applicant’s postal address, as identified on his initiating application filed on 28 March 2017, and the email address identified at the First Court Date as disclosed in Exhibit 1R.

4. The letter, dated 8 March 2019, enclosed by way of service a copy of the affidavit of Jennifer Louise Strugnell, affirmed 7 March 2019, and informed the applicant of the date, time and location of today’s hearing. The letter further informed the applicant that if the applicant did not appear on that occasion that the first respondent may apply to have the matter dismissed with costs. Exhibit 2R also attached a copy of the affidavit of Jennifer Louise Strugnell affirmed 7 March 2019.

5. The applicant attended a directions hearing on 13 July 2017 before a registrar of this Court. On that occasion, the applicant was given leave to file an amended application, any further evidence by way of affidavit and submissions in support of his application. At that directions hearing the matter was set down for final hearing today at 10:15am before me. At that directions hearing, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

6. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. There has been no communication received from the applicant either by the first respondent’s solicitors or by this Court seeking an adjournment of today’s hearing or for any other reason. On the evidence before me, I am satisfied that the applicant, indeed, departed Australia on 7 January 2019.  There is no document before me to suggest that the applicant has returned.

7. In any event, I am satisfied that the applicant was aware of today’s hearing, and either because he has departed Australia or for any other reason which the applicant has not disclosed, has not attended the hearing this morning.

8. As stated above, the matter was set down for hearing at 10:15am. It is now 10:47am. The matter has been called on at least two occasions, the most recently within the last half hour. In the circumstances, the orders sought by the first respondent are appropriate.

9. Accordingly, the proceeding before this Court, commenced by way of application filed on 28 March 2017, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicant to attend today’s scheduled hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  18 March 2019