DMY16 v Minister for Immigration

[2017] FCCA 1073

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1073

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) rr.13.03C, 44.12

Applicant: DMY16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3236 of 2016

Judgment of: Judge Emmett

Hearing date: 22 May 2017

Date of Last Submission: 22 May 2017

Delivered at: Sydney

Delivered on: 22 May 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Bernadette Rayment
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3236 of 2016

DMY16

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 pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 21 November 2016, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Ms Rayment, tendered a letter dated 11 April 2017, to the applicant from the solicitor for the first respondent, addressed to the applicant’s address for service in Australia. That letter was marked ‘Exhibit 1A’.

3. Exhibit 1A encloses, by way of service, the first respondent’s submissions and informs the applicant of the date, time, and location of today’s scheduled hearing. Exhibit 1R further informs the applicant that if the applicant did not attend the hearing, his matter may be dismissed with costs.

4. On 30 March 2017, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

5. I also note Order 11 of the Orders made on 30 March 2017 stated that in the event there was no appearance by or on behalf of the applicant at the time of any scheduled court event, the application may be dismissed without further notice. 

6. At the request of the first respondent, the matter was set down for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) at 9.30am today before me. It is now 11:08am. The matter has been called at least twice outside, the last occasion being less than ten minutes ago.

7. There has been no communication 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.

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

9. I am satisfied that the orders sought by the first respondent are appropriate.

10. Accordingly, the proceeding before this Court, commenced by way of application filed on 21 November 2016, should be dismissed with costs 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 ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 May 2017