DRQ18 v Minister for Home Affairs

[2018] FCCA 3369

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3369

Catchwords:
MIGRATION – Immigration Assessment Authority.

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: DRQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1983 of 2018

Judgment of: Judge Emmett

Hearing date: 19 November 2018

Date of Last Submission: 19 November 2018

Delivered at: Sydney

Delivered on: 19 November 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Asaf Fisher
(HWL Ebsworth Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1983 of 2018

DRQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSSESSMENT 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 17 July 2018, be dismissed pursuant to r.3.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) by reason of the applicant’s failure to attend today’s scheduled hearing.

2. On 9 August 2018, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file an Amended Application, any further evidence and submissions in support of the application. At that directions hearing, the matter was fixed for final hearing on 20 November 2018 at 2:15pm.

3. In support, the first respondent’s solicitor tendered a copy of an email sent to the applicant on 13 November 2018 to the applicant’s identified email address. That document attached a copy of a letter, dated 12 November 2018, from the first respondent’s solicitors to the applicant at his address for service in Australia. Together, those documents were marked Exhibit 1R.

4. The letter enclosed the first respondent’s submissions and reminded the applicant that the matter was listed for hearing today at 10:00am and provided the address of the courtroom. The letter also went on to inform the applicant that if the applicant did not attend the scheduled hearing that the first respondent would seek to have the application dismissed with costs.

5. Exhibit 1R makes clear to the applicant that, indeed, the hearing was rescheduled, for today at 10:00am. There was no appearance by or on behalf of the applicant at 10:00am this morning.

6. In the circumstances, the matter was stood down and attempts were made by the interpreter, who had been booked to assist the applicant, to ring the applicant on his telephone number. The interpreter informed the Court that the applicant did answer his phone and said that he was coming from Lidcombe and would be here within an hour. That was almost two and a half hours ago.

7. At 10:20am, when the interpreter spoke to the applicant, the applicant said it will take him an hour to get to the Court from Lidcombe, and the applicant has been given now more than two hours to arrive here.

8. The time is now 12:28pm. The matter has been called on at least three occasions outside. Further attempts were made by the interpreter to contact the applicant and the interpreter informed the Court that the applicant was no longer answering his mobile telephone. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and the time that it was due to commence.

9. The orders sought by the first respondent are appropriate, and the proceeding before this Court commenced by way of application, filed on 17 July 2018, 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

Deputy Associate:  

Date:  3 December 2018