Cxi17 v Minister for Immigration

[2017] FCCA 2684

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXI17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2684

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: CXI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2070 of 2017

Judgment of: Judge Emmett

Hearing date: 2 November 2017

Date of Last Submission: 2 November 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Charlotte Saunders
DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2070 of 2017

CXI17

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 30 June 2017 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 5 October 2017, the applicant attended a directions hearing with the assistance of an interpreter before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any additional 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. The applicant has not filed any document, either in accordance with those directions or otherwise.

3. However, on 30 October 2017 at 4:33pm the applicant sent an email to my chambers seeking an adjournment of today’s hearing. That request was forwarded by my chambers to the first respondent’s lawyers at 4:52pm and they were asked whether they consented to or opposed the applicant’s request for an adjournment of today’s hearing.

4. At 9:51am on 31 October 2017, the first respondent’s solicitors responded to the Court and to the applicant that the applicant’s request for an adjournment of today’s hearing was opposed.

5. At 1:05pm on 31 October 2017, my associate sent an email to the applicant and copied in the first respondent’s solicitor, confirming that the matter would proceed to hearing today at 9:30am. That email reminded the applicant of the location of the courtroom. 

6. At 4:19pm on 31 October 2017, the applicant emailed my chambers and the first respondent again seeking an adjournment on the basis that there had not been sufficient time for the applicant to prepare his case.  That was the same reason provided by the applicant in his request made on 30 October 2017.

7. At 4:44pm on 31 October 2017, my chambers emailed the parties again confirming that the hearing was to proceed today at 9:30am. My chambers also attached a copy of orders made by Registrar Cho at the First Court Date on 5 October 2017 which stated that:

   “In the event there is no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice.”

8. At 4:23pm yesterday, 1 November 2017, the first respondent sent through to chambers a copy of an email received by them from the applicant at 4:02pm on 1 November 2017, requesting to appear at today’s hearing by telephone. In forwarding that email, the first respondent stated that the first respondent neither consented to nor opposed the applicant’s request to appear by telephone. That correspondence was presented to me yesterday afternoon.

9. It had been made clear to the applicant on every occasion that it would be necessary for him to attend the hearing and the date, time and location were confirmed. The applicant has been aware of that date since 5 October 2017 and has had ample time to make arrangements to travel from Griffith.

10. In my view, in order to do justice between the parties, it is preferable to have the parties appear in Court in person. There are, of course, times that it may be appropriate to allow an applicant to appear by telephone. For example, if the distance was significant and the expense for the parties prohibitive. There is no evidence before me that such circumstances exist in this case. Sydney is readily accessible from Griffith and applicants appear regularly in person in the Court whilst residing in Griffith.

11. I further note that the applicant was able to attend the First Court Date on 5 October 2017 in person and at that time was residing in Griffith. Moreover, an appearance at the hearing this morning by telephone may have prompted the need for a further adjournment. 

12. In my view, having taken into account those considerations, the applicant’s request to appear by telephone was refused and the parties notified at 4:54pm yesterday afternoon, some 31 minutes after notification to my chambers of that request and less than an hour from the time the applicant made the request to the first respondent. 

13. The matter was set down for hearing at 9:30am today. I am satisfied the applicant was fully aware of the time, date and location of today’s hearing. It is now 10:30am. The matter has been called on at least two occasions. There has been no further communication received from the applicant either by the Court or the solicitors for the first respondent.

14. The solicitor for the first respondent, Ms Saunders, read an affidavit of Eleanor Jane Guy, affirmed 1 November 2017, annexing a letter addressed to the applicant and dated 31 October 2017. That letter annexed the first respondent’s submissions, and again provided the details of the time, date and location of today’s hearing. The letter also informed the applicant that if he did not attend today’s hearing the first respondent may seek to have the matter dismissed with costs for non-appearance. 

15. In the circumstances, the orders sought by the first respondent are appropriate and the proceeding before this Court commenced by way of application filed on 30 June 2017 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: 7 November 2017