Cid17 v Minister for Immigration and Border Protection

[2018] FCA 1680

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:

1. 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.

2. 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. 

3. 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.

4. 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. 

5. 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