Bid15 v Minister for Immigration & Border Protection

[2015] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

BID15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2606

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: BID15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1919 of 2015

Judgment of: Judge Emmett

Hearing date: 22 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Sydney

Delivered on: 22 September 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Ms Nayomi Senanayake (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1919 of 2015

BID15

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 10 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 directions 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 giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 27 August 2015, as well as submissions in support by 28 August 2015.

3. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the request of the first respondent, the matter was listed today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant, together with a copy of the costs schedule of the Court.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. Order 12 of the Orders made on 6 August 2015 states that “In the event that there is no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice.”

8. There have been no documents filed by or on behalf of the applicant, either in accordance with those directions, or otherwise.

9. In support of the application for the proceeding to be dismissed pursuant to r.13.03C(1)(c) the solicitor for the first respondent, Ms Senanayake, read an affidavit of Vanessa Sara Page, affirmed 18 September 2015 and filed in Court this morning. That affidavit annexes letters sent on the letterhead of the solicitors for the first respondent to the applicant attaching, by way of service, a copy of the first respondent’s outline of submissions in respect of the hearing this morning. The letters were sent on 3 September 2015, both to the applicant’s address for service in Australia and the applicant’s identified email address. Those letters informed the applicant that if the applicant did not attend today’s scheduled Court date the first respondent may seek to have the matter dismissed with costs for non-appearance.

10. In addition, the solicitor of the first respondent tendered a letter, dated 10 August 2015, addressed to the applicant at both the applicant’s address for service in Australia and the applicant’s residential address in Australia. That letter was marked Exhibit 1R.

11. Exhibit 1R, together with the letters sent by the first respondent on 3 September, gave the address and location and time of today’s hearing. Exhibit 1R also informed the applicant that if the applicant did not attend today’s hearing, the first respondent may seek to have the matter dismissed with costs for non-appearance.

12. At the directions hearing on 6 August 2015, the matter was set down for hearing today at 9:30am. It is now 10:40am. The matter has been called outside on at least two occasions, the most recent being less than 10 minutes ago.

13. There has been no communication received from the applicant, either by the Court or the first respondent, seeking an adjournment of today’s hearing, or for any other reason.

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

15. I am satisfied that the orders sought by the first respondent are appropriate.

16. Accordingly, the proceeding before this Court, commenced by way of application filed on 10 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 24 September 2015