BVC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 2232

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVC17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 2232

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: BVC17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1280 of 2017

Judgment of: Judge Emmett

Hearing date: 14 August 2019

Date of Last Submission: 14 August 2019

Delivered at: Sydney

Delivered on: 14 August 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitor for the Respondents: Ms Carmen Juarez
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1280 of 2017

BVC17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The first respondent seeks an order that the proceeding before this Court commenced by way of application filed on 28 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. In support, the first respondent tendered 3 documents. The first document, marked Exhibit 1R, is a copy of the Information Sheet provided on the First Court Date identifying the applicant’s current home address and current postal address. I note that the current home address is different to the residential address identified on the applicant’s initiating Application. However, the postal address remains the same as does the applicant’s email address.

3. The second document, marked Exhibit 2R, is an email, dated 6 August 2019, from the first respondent’s solicitor addressed to the applicant at the applicant’s identified email address. That email attaches a copy of a letter, dated 6 August 2019, sent by express post and emailed from the first respondent’s solicitor to the applicant at the applicant’s postal address and also addressed to the applicant’s residential address provided on the initiating application. That letter enclosed by way of service a copy of the first respondent’s submissions and reminded the applicant that the matter was listed today at 10:15am for hearing and provided the location of the courtroom. The letter also informed the applicant that if the applicant failed to appear the first respondent may seek to have the matter dismissed for non-appearance with costs.

4. The third document, marked Exhibit 3R, is a copy of a letter, dated 12 August 2019, addressed to the applicant at the address provided in Exhibit 1R and the content of that letter was the same as that attached to Exhibit 2R.

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

6. There has been no document filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

7. The time is now 10:57am. The matter has been called on at least 2 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.

8. 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.

9. 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 nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 August 2019