DKM18 v Minister for Home Affairs

[2019] FCCA 779

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKM18 v MINISTER FOR HOME AFFAIRS [2019] FCCA 779

Catchwords:
MIGRATION – Application to review decision of Minister that protection visa application was invalid – summary dismissal application – non-appearance by Applicant.

Legislation:

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

Applicant: DKM18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1826 of 2018

Judgment of: Judge Barnes

Hearing date: 19 March 2019

Delivered at: Sydney

Delivered on: 19 March 2019

REPRESENTATION

The Applicant: No Appearance

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

1. There being no appearance by the Applicant, the application filed on 2 July 2018 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the Respondent fixed in the sum of $3,667.

3. The solicitor for the Respondent notify the Applicant of the orders made today and of the effect of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by:

   (i)letter sent to the Applicant’s last notified address for service; and

   (ii)email to the email addressed provided by the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 182 of 2018

DKM18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision by a delegate of the Minister that a protection visa application was invalid.  The Respondent has filed an application seeking summary dismissal of that application.

2. When the matter first came before a registrar in July 2018 the orders made included listing the matter for callover on a date to be advised.  The Respondent has tendered a copy of a letter sent to the Applicant on 11 January 2019, advising the Applicant of the fact that an application in a case seeking summary dismissal had been filed, serving the application in a case and the supporting affidavit and advising that this matter was listed for directions today at 9.30am at 80 William Street, Sydney.  The letter informed the Applicant that he was required to attend court today and that if there was no appearance, the Respondent may, without further notice, seek orders that this application be dismissed with costs. 

3. There was no appearance by the Applicant today at the time the matter was listed.  Nor is there any appearance now over half an hour later.

4. In these circumstances, I considered it appropriate that the application of 2 July 2018 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the Rules). However, to allow for the possibility that there is a legitimate reason for the Applicant’s failure to appear today, I also intend to order that the solicitors for the Respondent notify the Applicant of the orders made today and of the effect of r.16.05 of the Rules both by letter to the Applicant’s address for service last notified (which is the address for service in the initiating application), and also by email sent to the email address provided by the Applicant at that time.

5. It is also appropriate that the Applicant pay the costs of the Respondent fixed in the sum of $3,667.

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

Date: 28 March 2019