Dfo18 v Minister for Home Affairs

[2019] FCCA 355

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFO18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 355

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – application dismissed.

Legislation:

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

Applicant: DFO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1738 of 2018

Judgment of: Judge Emmett

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Sydney

Delivered on: 11 February 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Max Gao
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2018

DFO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 21 June 2018 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. The applicant attended a directions hearing before a Registrar of this Court on 12 July 2018. On that occasion the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. At that directions hearing the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. At that directions hearing the matter was set down for callover on 7 November 2019 at 10:00am, before me. 

3. On 22 November 2018, I made orders in chambers listing the matter for a show cause hearing pursuant to r.44.12 of the Rules, that hearing to be today, 11 February 2019 at 9:30am, before me.

4. I further note that on 22 November 2018 my chambers wrote to the applicant at his address for service, informing him that the callover on 7 November 2019 had been vacated and that his matter was listed for hearing today at 9:30am. That letter also provided the location of the courtroom and annexed a copy of the sealed order.

5. The first respondent tendered a letter, dated 4 February 2019, from the first respondent’s solicitor to the applicant, addressed to the applicant at his address for service in Australia. That letter was marked “Exhibit 1R”.  Exhibit 1R enclosed, by way of service, a sealed copy of the first respondent’s submissions and reminded the applicant that the application was listed for hearing today at 9:30am and provided the location of the courtroom. Exhibit 1R also notified the applicant that, if he failed to appear, his application may be dismissed with costs without further notice. 

6. The matter has been called on at least two occasions outside, the most recent being within the last five minutes.

7. The time is now 10:43am. There has been no appearance by or on behalf of the applicant. There has been no document filed by the applicant in accordance with the directions made by the Registrar on 12 July 2018.

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

9. Accordingly, the orders sought by the first respondent are appropriate and the proceeding should be dismissed with costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  18 February 2019