DHC16 v Minister for Immigration

[2018] FCCA 3953

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHC16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3953

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – No appearance by or on behalf of the applicant – application dismissed for want of appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 13.03C(1)(c)

Applicant: DHC16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 550 of 2016

Judgment of: Judge Street

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Perth

Delivered on: 30 November 2018

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2. The application is dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

DATE OF ORDER: 30 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 550 of 2016

DHC16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 29 September 2016 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. 

2. The proceedings were commenced on 3 November 2016. On 10 August 2018, orders were made fixing the matter for a hearing today. The matter has been called and the applicant has failed to appear. 

3. The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth). The first respondent has tendered an email sent to the applicant’s email address identified on the originating application dated 3 November 2016 notifying the applicant of the hearing date today.

4. The first respondent has further tendered a copy of both an email and correspondence sent to the respective email address and residential address identified on the originating application reminding the applicant of the hearing date today and foreshadowing an application to have the proceedings dismissed with costs if the applicant failed to appear. 

5. I am satisfied on the evidence before the Court that the applicant was aware of the hearing date. I am satisfied this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) of the Federal Circuit Court Rules. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2019