Dib16 v Minister for Immigration

[2018] FCCA 1620

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1620

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: DIB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3056 of 2016

Judgment of: Judge Emmett

Hearing date: 19 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Sydney

Delivered on: 19 June 2018

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondent: Ms Sophie Given
(HWL Ebsworth Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3056 of 2016

DIB16

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 that the proceeding before this Court, commenced by way of application filed on 7 November 2016, be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the failure to attend today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Ms Given, read the affidavit of Katherine Elizabeth Garaty, affirmed 13 June 2018. Ms Garaty’s affidavit annexed screenshots of the Department of Immigration’s Integrated Client Services Environment (ICSE) database which I accept disclose that the applicant departed Australia on 29 December 2017.

3. Ms Given also tendered a letter, marked Exhibit 1R. Exhibit 1R is a letter from HWL Ebsworth, the solicitors for the first respondent, addressed to the applicant at the applicant’s address for service in Australia and dated 13 June 2018. Exhibit 1R was served on the applicant along with a copy of the applicant’s outline of submissions and the affidavit of Katherine Elizabeth Garaty filed in the Federal Circuit Court on 13 June 2018.

4. Exhibit 1R also reminded the applicant that the matter was listed for hearing today at 9:15am and provided the location of the courtroom. Exhibit 1R went on to inform the applicant that if the applicant did not attend the scheduled hearing, orders would be sought from the court that his application be dismissed with costs. 

5. I note that the applicant attended a directions hearing before a registrar of this court on 16 March 2017. 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. 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 at that directions hearing. On that occasion, the matter was set down for final hearing today at 10:15am, before me.

6. No documents have been filed by or on behalf of the applicant in accordance with those directions or otherwise.

7. It is now 10:39am. The matter has been called on at least two occasions outside, most recently being less than five minutes ago.

8. No communication has been received from the applicant either by the Court or the first respondent’s solicitor seeking an adjournment of today’s hearing, or for any other reason.

9. Based on the evidence before me, I am satisfied that the applicant departed Australia on 29 December 2017 and has not returned to Australia. I am also satisfied that the applicant was aware of today’s scheduled hearing and did not attend by reason of his departure from Australia.

10. In the circumstances, the orders sought by the first respondent are appropriate.

11. The proceeding before this Court, commenced by way of application filed on 7 November 2016, should be dismissed with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  27 June 2018