CHE15v Minister For Immigration & Anor

[2017] FCCA 2598

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHE15v MINISTER FOR IMMIGRATION
& ANOR [2017] FCCA 2598

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: CHE15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2985 of 2015

Judgment of: Judge Emmett

Hearing date: 26 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Sydney

Delivered on: 26 October 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Andrew Keevers
Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2985 of 2015

CHE15

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 pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application, filed on 3 November 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Mr Keevers, tendered a letter dated 18 October 2017, which was sent to the applicant’s address for service in Australia by the solicitor for the first respondent. That document was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed by way of service a copy of the first respondent’s submissions and further informed the applicant that the hearing was scheduled for today at 10:15am before me. Exhibit 1R provided the address of the courtroom. Exhibit 1R further advised the applicant that if the applicant did not attend today’s hearing, the respondent would seek orders from the Court that his matter be dismissed with costs.

4. I note that on 10 December 2015, the applicant attended a directions hearing before a registrar of this Court. 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. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

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

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

7. When the matter was first called this morning at 10:15am and there was no appearance for the applicant, Mr Keevers informed the Court that he had the mobile telephone number of the applicant. Mr Keevers was granted a short adjournment in order to see if he could contact the applicant through that telephone number. Mr Keevers then informed the Court that the mobile telephone number that had been provided by the applicant was no longer operational. 

8. At the directions hearing on 3 November 2015, the matter was set down for hearing on 3 October 2017. However, on 28 June 2017, that hearing date was vacated and the matter was set down for final hearing today at 10:15am before me. 

9. The first respondent tendered two further letters. The first letter, dated 26 June 2017, was marked ‘Exhibit 2R’. Exhibit 2R was a letter from my chambers addressed to the first respondent, and the applicant at his address for service in Australia, informing the parties that the hearing date of 3 October had been vacated. Exhibit 2R stated that the matter was relisted for hearing today at 10:15am and notified the parties of the location of the courtroom.

10. The second letter, dated 28 June 2017 and marked ‘Exhibit 3R’, is from the first respondent’s solicitors, again, addressed to the applicant at the applicant’s address for service in Australia, enclosing a copy of Exhibit 2R and, again, providing the applicant with that information. 

11. Exhibit 3R also informed the applicant that if the applicant did not attend on 26 October 2017, the respondent would seek orders that his application be dismissed with costs. 

12. The time is now 10:32am. The matter has been called on at least two occasions outside, including within the last five minutes.

13. In the circumstances, I am satisfied that the applicant is aware of today’s hearing.

14. Accordingly, the order sought by the first respondent is appropriate.

15. The proceeding before this Court commenced by way of application filed on 3 November 2015 should be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  2 November 2017