CSM15 v Minister for Immigration

[2016] FCCA 1237

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSM15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1237

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: CSM15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3414 of 2015

Judgment of: Judge Emmett

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant. 

Solicitor for the Respondents: Mr Rohan White
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3414 of 2015

CSM15

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 17 December 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 Rohan White, tendered a letter dated 12 May 2016, to the applicant from the solicitor for the first respondent, addressed to the applicant’s address for service in Australia. That letter was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed, by way of service, a copy of the first respondent’s submissions and informed the applicant of the date, time, and location of today’s scheduled hearing. It further informed the applicant that if the applicant did not attend today’s scheduled hearing, the first respondent may, without further notice, seek orders that his application be dismissed with costs.

4. On 18 February 2016, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

5. At the request of the first respondent, the matter was listed for a hearing pursuant to r.44.12 of the Rules on the basis that the grounds of the application did not disclose an arguable case for the relief sought. A copy of that rule was also given to the applicant. 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.

6. Additionally, order 12 of the Orders made by the Registrar on 12 February 2016 made clear that, in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the applicant’s application may dismissed without further notice.

7. There has been no document filed by the applicant either in accordance with those directions or otherwise.

8. For completeness, the grounds of the applicant’s initiating application, filed on 17 December 2015, are as follows:

   “(1) Lack of procedure fairness. 

   (2) My application were not fairly assessed by AAT and DIBP.”

   (Errors in original).

9. The matter was set down for hearing today at 9:30am. It is now 9:50am. The matter has been called at least twice outside, the last occasion being less than five minutes ago.

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

11. In the circumstances, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.

12. I am satisfied that the orders sought by the first respondent are appropriate.

13. Accordingly, the proceeding before this Court, commenced by way of application filed on 17 December 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 31 May 2016