DRQ18 v Minister for Home Affairs & Anor (No.2)

[2019] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRQ18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 467

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(l)(c) of the
Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Cases cited:

DRQ18 v Minister for Home Affairs & Anor [2018] FCCA 3369

Applicant: DRQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number:   SYG 1983 of 2018

Judgment of: Judge Emmett

Hearing date: 26 February 2019

Date of Last Submission: 26 February 2019

Delivered at: Sydney

Delivered on: 26 February 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Sophie Alexandra Helena Given
(HWL Ebsworth Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1983 of 2018

DRQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of Federal Circuit Court Rules 2001 (Cth) (“the Rules”)  that the proceeding before this Court, commenced by way of Application in a Case, filed on 28 December 2018, be dismissed by reason of the applicant’s failure to appear at today’s scheduled hearing. 

2. The Application in a Case seeks reinstatement of the applicant’s Application, filed on 17 July 2018, which sought judicial review of a decision of the Immigration Assessment Authority’s decision, dated 12 June 2018 (“the Authority”). 

3. The applicant attended a directions hearing on 9 August 2018 before a registrar of this Court with the assistance of a Nepalese interpreter. 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.

4. On 8 November 2018, the matter was relisted for final hearing on 19 November 2018. That order was made by consent in chambers. 

5. On 19 November 2018, the applicant failed to attend the scheduled hearing before this Court in respect of his judicial review of the Authority’s decision. Orders were made by me on that occasion dismissing his proceedings pursuant to r.13.03C(1)(c) of the Rules by reason of his failure to attend, and I note that reasons were given by me at that time in DRQ18 v Minister for Home Affairs & Anor [2018] FCCA 3369.

6. The applicant filed his Application in a Case seeking reinstatement, as stated above, on 28 December 2018, supported by an affidavit, affirmed and filed also on 28 December 2018.

7. The first respondent read the affidavit of Asaf Fisher, affirmed 21 February 2019, which annexed a copy of an email sent to the applicant and copied to the first respondent’s solicitor, and stating as follows:

   “Dear [applicant’s actual name]

   I refer to the attached Application in a Case and Affidavit that were filed in the Registry on 28 December 2018.

   Please be advised that the Application in a Case has been listed for an Interlocutory Hearing at 9:30 am on Tuesday 26 February 2019 in Courtroom 9.3 at 80 William Street, Sydney.”

8. The first respondent’s solicitor, Ms Given, also tendered a letter dated 22 February 2019 from the first respondent’s solicitor addressed to the applicant at the applicant’s address for service identified on the Application in a Case filed on 28 December 2018. That letter was marked Exhibit 1R.

9. Exhibit 1R enclosed written submissions and the affidavit of Mr Asaf Fisher, affirmed 21 February 2019, and reminded the applicant of the hearing of his Application in a Case today at 9:30am before me, and provided the location of the courtroom.  

10. It is now 10:13am. The matter has been called on at least two occasions outside, most recently being within the last 10 minutes.

11. There has been no appearance by or on behalf of the applicant. There has been no communication received from the applicant either by the Court or by the first respondent.

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

13. The orders sought by the first respondent are appropriate, and the applicant’s Application in a Case, filed on 28 December 2018, should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 28 February 2019