Bwu15 v Minister for Immigration

[2016] FCCA 170

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 170

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:

Migration Act 1958 (Cth), s.477

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: BWU15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2541 of 2015

Judgment of: Judge Emmett

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 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 2541 of 2015

BWU15

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 that the applicant’s application, filed on 15 September 2015, for an extension of time to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 January 2015 pursuant to s.477 of the Migration Act 1958 (Cth), be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of a failure of the applicant to appear at today’s scheduled hearing.

2. In support, the first respondent tendered a letter dated 29 January 2016, addressed to the applicant at the applicant’s address for service in Australia. That letter was marked Exhibit 1R.

3. Exhibit 1R enclosed a copy of the first respondent’s written submissions and provided the time, date, and location of today’s hearing.

4. Exhibit 1R also informed the applicant that if the applicant did not attend today’s hearing, the first respondent would seek orders from the Court that the matter be dismissed with costs. 

5. On 29 October 2015, the applicant attended a directions hearing before a Registrar of the Court. At the directions hearing, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, and any further evidence and submissions in support of the applicant’s application for an extension of time to seek judicial review of a decision of the RRT dated 23 January 2015.

6. At the directions hearing, the matter was set down for hearing of the applicant’s application for an extension of time today, at 9:30am, before me.

7. 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.

8. It is now 10:50am. The matter has been called outside on at least two occasions, the most recent being less than five minutes ago.

9. There has been no communication received, either by the first respondent or the Court, from the applicant seeking an adjournment of today’s scheduled 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. I am satisfied that the orders sought by the first respondent are appropriate.

12. Accordingly, the applicant’s application, filed on 15 September 2015, for an extension of time to seek judicial review of a decision of the RRT dated 23 January 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 attend today’s scheduled hearing.

13. I note that in the absence of an extension of time being granted, the proceeding filed on 15 September 2015, is incompetent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 11 February 2016