Buq17 v Minister for Immigration

[2019] FCCA 2107

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2107

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: BUQ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1260 of 2017

Judgment of: Judge Emmett

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Sydney

Delivered on: 1 August 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1260 of 2017

BUQ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court commenced by way of an application filed on 27 April 2017, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. On 27 April 2017, the applicant filed his initiating application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 29 March 2016. That application was supported by an affidavit of the applicant sworn/affirmed on 25 April 2017 and filed on 27 April 2017.

3. The applicant failed to attend the hearing before the Tribunal and stated in his affidavit that he did not receive the invitation because he had changed his contact details and forgotten to notify the Tribunal of his new contact details.

4. On 10 August 2017, the applicant attended a directions hearing before a Registrar of this Court with the assistance of an interpreter and volunteer legal assistance. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence, and submissions in support. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. The matter was set down for final hearing today at 10:15am before me.

5. There have been no documents filed by or on behalf of the applicant either in accordance with the Court’s directions or otherwise.

6. In support of the application, the first respondent tendered two documents. The first document marked Exhibit 1R was a letter, dated 25 July 2019, addressed to the applicant at his identified address for service in Australia.

7. Exhibit 1R enclosed a copy of the first respondent’s submissions and reminded the applicant that the matter was listed for hearing today at 10:15am before me, and provided the address and the location of the Court.  Exhibit 1R also informed the applicant that if the applicant failed to attend, the first respondent would seek to have the proceeding dismissed with costs.

8. The second document, marked Exhibit 2R, was an email attaching Exhibit 1R and addressed to the applicant’s email address as identified on his initiating application filed on 27 April 2017.

9. The time is now 10:35am. The matter has been called on at least two occasions, the most recently being within the last 10 minutes. There has been no communication received from the applicant, either by the first respondent’s solicitor or the Court, seeking an adjournment of today’s hearing or for any other reason.

10. 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.

11. Accordingly, the orders sought by the first respondent are appropriate and the proceeding before this Court should be dismissed with costs. 

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

Associate: 

Date:  13 August 2019