CLP17 v Minister for Immigration

[2017] FCCA 2618

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLP17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2618

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), rr.13.03C, 44.12

Applicant: CLP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1772 of 2017

Judgment of: Judge Emmett

Hearing date: 27 October 2017

Date of Last Submission: 27 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Chloe Hillary
DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1772 of 2017

CLP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 7 June 2017 be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing. 

2. I note that the applicant attended a directions hearing before a registrar of this Court on 7 September 2017 with the assistance of an interpreter.  On that occasion, the applicant was given leave to file and serve an amended application and any further evidence in support of the application. I also note that the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

3. I note that there has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise.

4. At the directions hearing, the matter was set down for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) at the request of the first respondent on the basis that the grounds of the application did not disclose an arguable case for the relief sought. The matter was set down for hearing today before me at 9:30am.

5. The matter has been called on at least two occasions, and most recently within the last five minutes. 

6. The first respondent’s solicitor, Ms Hillary, tendered a letter marked Exhibit 1R dated 5 October 2017 and addressed to the applicant at the applicant’s address for service in Australia. Exhibit 1R encloses by way of service the first respondent’s outline of submissions and reminded the applicant of the date and time of today’s hearing and provided the location of the courtroom. 

7. Exhibit 1R also informed the applicant that if the applicant did not attend the hearing, the first respondent may seek to have the matter dismissed with costs for non-appearance.

8. On 24 October 2017, an email was sent to both the first respondent and the applicant from my chambers informing them that the hearing would commence today at 10:15am rather than at 9:30am.

9. There has been no communication received from the applicant either by the first respondent or this Court seeking an adjournment or for any other reason. 

10. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and for whatever reason has chosen not to attend. 

11. Accordingly, the orders sought by the first respondent are appropriate.

12. The proceeding before this Court commenced by way of application filed on 7 June 2017 should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  2 November 2017