BIK15 v Minister for Immigration and Border Protection

[2016] FCCA 187

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIK15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] FCCA 187

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: BIK15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1926 of 2015

Judgment of: Judge Emmett

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

No appearance by or on behalf of the applicant.

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

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1926 of 2015

BIK15

Applicant

And

MINISTER FOR IMMIGRATION AND 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 13 July 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Mr Keevers, read the affidavit of Taylor Georgina Smith, affirmed on 4 February 2016.

3. Ms Smith’s affidavit annexed a copy of a letter dated 28 January 2016 sent to the applicant at the applicant’s address for service in Australia. That letter provided the time, date and location of today’s hearing. It further informed the applicant that the first respondent will seek orders from the Court that the matter be dismissed with costs if the applicant failed to attend today’s scheduled hearing. The letter also enclosed, by way of service, a copy of the first respondent’s submissions.

4. Ms Smith’s affidavit annexed a copy of an Express Post envelope, addressed to the applicant at the address for service provided by the applicant. That envelope was marked “Return to Sender” with a notation “This person no longer living here.  Please do not send again”. 

5. The matter first came before the Court on 6 August 2015. On that occasion, a Registrar of the Court made directions giving the applicant leave to file and serve an Amended Application and any further evidence by 13 August 2015, and submissions in support by 14 August 2015. The matter was set down for a show cause hearing, pursuant to r.44.12 of the Rules, on 23 September 2015 at 9.30am, before me. 

6. On 23 September 2015, the applicant appeared at the show cause hearing. However, the matter was stood over for further hearing on 27 October 2015 at 9.30am, before me. 

7. On 27 October 2015, the applicant appeared at the scheduled show cause hearing. On that occasion, the matter was stood over to the following day, being 28 October 2015.

8. On 28 October 2015, the applicant appeared at the scheduled show cause hearing. On that occasion, the applicant was again given leave to file and serve an Amended Application, any further evidence including any transcript of the hearing before the Administrative Appeals Tribunal by 9 December 2015, and submissions in support of his application. The matter was set down for final hearing before me today at 10.00am. 

9. Order 13 of the Orders made by me on 28 October 2015 also noted that in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may dismissed without further notice.

10. There has been no document filed or served by or on behalf of the applicant, either in accordance with the directions made by the Court or otherwise.

11. It is now 10.42am. The matter has been called outside on at least two occasions, the most recent being less than five minutes ago.

12. I note that Order 10 of the Orders made by me on 28 October 2015 directed that the applicant file and serve any change of address and contact details upon such a change. There has been no change of contact details filed by the applicant.

13. There has been no communication received, from or on behalf of the applicant, either by the Court or the first respondent's solicitor, 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 13 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

Date: 11 February 2016