Cxi17 v Minister for Immigration & Anor (No.2)

[2018] FCCA 1411

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXI17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 1411

Catchwords:
MIGRATION – Application in a case seeking reinstatement of the initiating application for judicial review pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – no appearance by or on behalf of the applicant – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at the scheduled hearing.

Legislation:
Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.12

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: 30 May 2018

Date of Last Submission: 30 May 2018

Delivered at: Sydney

Delivered on: 30 May 2018

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Mr Aaron Day
(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 Application in a Case filed by the applicant on 27 November 2017 seeking reinstatement of the applicant’s initiating application for judicial review filed on 30 June 2017, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) ("the Rules"), 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 before a Registrar of this Court, and on that occasion the matter was set down for a show cause hearing pursuant to r.44.12 of the Rules on 2 November 2017 at 9:30am, before me.

3. On 2 November 2017, the applicant failed to appear at the scheduled hearing, as a result of which Orders were made dismissing the proceeding before the Court commenced by way of Application filed on 30 June 2017 pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicant to appear at that scheduled hearing.

4. On 27 November 2017, the applicant filed an Application in a Case, being the application presently before this Court, pursuant to r.16.05 of the Rules. The Application in a Case was accompanied by an Affidavit sworn by the applicant on 24 November 2017.

5. On 26 February 2018, the applicant’s solicitor, Mr Elias Attia, appeared before me at a directions hearing and the Application in a Case filed on 27 November 2017 was set down for hearing before me today at 10:00am. 

6. On 4 May 2018, the Mr Attia filed a Notice of Intention to Withdraw as Lawyer. That Notice of Intention to Withdraw as Lawyer noted that the matter was listed for hearing today at 10:00am and also noted the correct location of the courtroom. By affidavit sworn 28 May 2018, Mr Attia deposed that the applicant was served with the Notice of Intention to Withdraw as Lawyer on 5 May 2018. 

7. I note that Mr Attia’s Affidavit of 28 May 2018 also states that on or around 11 May 2018 the applicant called Mr Attia to advise that the applicant would be appearing in Court on his own at today’s hearing.

8. In the circumstances, I am satisfied that as at 5 May 2018 the applicant was aware that the Application in a Case was listed for hearing today at 10:00am. 

9. It is now 10:48am. The matter has been called on at least two occasions and there has been no appearance by or on behalf of the applicant.  Further, no communication has been received by the Court from the applicant seeking an adjournment of today’s hearing, or for any other reason. 

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

11. In the circumstances, the Application in a Case filed on 27 November 2017 should be dismissed 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 eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 4 June 2018