Bxo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXO17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 2241

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: BXO17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1360 of 2017

Judgment of: Judge Emmett

Hearing date: 15 August 2019

Date of Last Submission: 15 August 2019

Delivered at: Sydney

Delivered on: 15 August 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitor for the Respondents: Mr Julian Pinder
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1360 of 2017

BXO17

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 application filed on 4 May 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’s solicitor Mr Pinder, tendered a copy of an email marked Exhibit 1R which attached a copy of a letter, dated 8 August 2019, addressed to the applicant at each of the applicant’s email address, post office box and address for service in Australia as identified on the applicant’s substantive application filed on 4 May 2017. There has been no change of contact details filed by the applicant.

3. The letter attached to Exhibit 1R enclosed, by way of service, the first respondent’s outline of submissions, reminded the applicant of today’s scheduled hearing at 10:15am and provided the location of the courtroom. The letter also informed the applicant that if he did not appear that the first respondent may apply to have the matter dismissed for non-appearance with costs.

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

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

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

7. The matter has been called on at least 2 occasions, the most recently being within the last 5 minutes. It is now 10:30am. The matter was set down for hearing at 10:15am.

8. In the circumstances, I am satisfied that the applicant is aware of today’s 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: 15 August 2019