CBK17 v Minister for Immigration

[2018] FCCA 958

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 958

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: CBK17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1470 of 2017

Judgment of: Judge Emmett

Hearing date: 18 April 2018

Date of Last Submission: 18 April 2018

Delivered at: Sydney

Delivered on: 18 April 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Rohan White
(Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1470 of 2017

CBK17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. By way of Application in a Case filed on 2 March 2018, the first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), that the proceeding before this Court, commenced by way of application filed on 15 May 2017, be dismissed by reason of the applicant’s failure to appear at today’s scheduled hearing.

2. In support of that application, the first respondent’s solicitor, Mr White, read two affidavits of Ms Ada Oi-Yee Wong. The first affidavit was sworn 21 December 2017 and annexed screenshots from the Department’s file management system showing the applicant’s “Movement check” details.  Those screenshots disclose that the applicant’s last held visa was a bridging visa which was granted on 8 September 2017 and ceased on 13 December 2017.  A further annexure of this screenshot shows that the applicant departed Australia on 13 December 2017 and had not at that stage returned to Australia.

3. The second affidavit sworn 2 March 2018, annexes copies of documents, including orders made by the Court on 13 February 2018, addressed to the applicant at the applicant’s address for service in Australia.  Those annexures enclose the affidavits of Ms Wong and in addition to the orders made by the Court, informed the applicant that if the applicant failed to appear at today’s scheduled hearing that the first respondent may seek without further notice that the proceeding be dismissed with costs.

4. There is no evidence before me to suggest that the applicant has since returned to Australia since Ms Wong’s first affidavit, sworn 21 December 2017. 

5. In any event, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend. 

6. I accept that on the evidence before me the most probable scenario is that the applicant departed Australia on 13 December 2017 and has not returned to Australia.

7. The matter is listed for hearing today at 9:45am.  It is now 10:10am.  The matter has been called on at least two occasions outside and there has been no appearance either by or on behalf of the applicant. 

8. In the circumstances, the orders sought by the first respondent are appropriate.

9. Accordingly, the proceeding before this Court commenced by way of application filed on 15 May 2017, 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:  1 May 2018