Cid17 v Minister for Immigration and Border Protection
[2018] FCA 1680
•5 November 2018
FEDERAL COURT OF AUSTRALIA
CID17 v Minister for Immigration and Border Protection [2018] FCA 1680
Appeal from: Application for judicial review: CID17 v Minister for Immigration & Anor [2017] FCCA 3154 File number: NSD 1855 of 2018 Judge: YATES J Date of judgment: 5 November 2018 Catchwords: MIGRATION – application for judicial review of judgment of Federal Circuit Court – failure to appear by applicant – application dismissed Legislation: Federal Court Rules 2011, rr 5.22, 5.23
Judiciary Act 1903 (Cth), s 39B
Date of hearing: 5 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 5 Counsel for the Applicant: The applicant did not appear Solicitor for the First Respondent: Ms S Sangha of Mills Oakley Counsel for the Second Respondent The second respondent filed a submitting notice Counsel for the Third Respondent The third respondent did not appear
Table of Corrections 16 November 2018 In the appeal from field on the cover page, the words “Application for judicial review:” have been added.
In the catchwords field on the cover page, the catchwords “appeal from judgment of Federal Circuit Court – failure to appear by appellant – appeal dismissed” have been replaced with “application for judicial review of judgment of the Federal Circuit Court – failure to appear by applicant – application dismissed”.
ORDERS
NSD 1855 of 2018 BETWEEN: CID17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION (and others named in the schedule)
First Respondent
JUDGE:
YATES J
DATE OF ORDER:
5 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The originating application filed 3 October 2018 be dismissed under r 5.23(1)(b)(i) of the Federal Court Rules 2011, with costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)YATES J:
The applicant filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) on 3 October 2018. I note that the second respondent has filed a submitting appearance.
The first case management hearing was listed for today. The matter has been called outside the Court. There has been no appearance by the applicant. The matter was stood down in the list to enable other business of the Court to be conducted given the possibility that the applicant might be running late. That business has been conducted and the matter is now back before me.
Ms Sangha, the solicitor for the first respondent, the Minister for Immigration and Border Protection, has applied, under r 5.22 and 5.23 of the Federal Court Rules 2011 for an order that the proceeding be dismissed for want of attendance by the applicant.
The only document on file from the applicant is the originating application to which I have referred. That originating application refers to an accompanying affidavit dated 24 May 2018. No such affidavit appears on the court file and Ms Sangha informs me that no such affidavit has been served on the first respondent.
Given that the applicant is in default under r 5.22(c) based on his non-attendance, I propose to accede to the Minister’s application and dismiss the proceeding under r 5.23(1)(b)(i). Orders will be made accordingly.
I certify that the preceding five (5) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 6 November 2018
SCHEDULE OF PARTIES
NSD 1855 of 2018 Second Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Third Respondent
JUDGE STREET IN HIS CAPACITY AS A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA
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