DTH16 v Minister for Immigration

[2017] FCCA 941

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 941

Catchwords:
MIGRATION – Application to review decision of Administrative Appeal Tribunal – no appearance.

Legislation:

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

Applicant: DTH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3474 of 2016

Judgment of: Judge Barnes

Hearing date: 3 May 2017

Delivered at: Sydney

Delivered on: 3 May 2017

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. There being no appearance by the Applicant, the application is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,650.

3. The solicitors for the First Respondent notify the Applicant of the orders made today and of the effect of rule 16.05 of the Federal Circuit Court Rules by letter sent by prepaid post to the address provided by the Applicant in the application for review within 7 days of today’s date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3474 of 2016

DTH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal dated 7 November 2016. The Applicant sought review by application filed in this court on 7 December 2016. The matter was listed for first directions, as recorded on the Notice of Filing and Hearing, on 20 April 2017 before a registrar of the Court. It is apparent from the registrar’s orders that there was no appearance by the Applicant on that day. In light of a concern as to whether registrars have the power to dismiss applications for non-appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the matter was listed before me today as notified in the registrar’s orders.

2. The Court wrote to the Applicant on 20 April 2017 by letter addressed to him at the address provided in the application for review advising him of today’s listing in circumstances where he had not appeared before the registrar and the registry had unsuccessfully attempted to contact him on his mobile telephone number.  The letter recorded that a copy of the orders (which stated the place for the hearing) was enclosed.

3. In these circumstances, despite the absence of a letter from the solicitors for the First Respondent advising the Applicant of the date, time and place of the directions hearing before me or of the fact that they intended to seek to have the matter dismissed for non-appearance with costs if the Applicant failed to appear, the Minister seeks that the application be dismissed for non-appearance and costs. I am prepared to make these orders on this occasion, but intend to order the solicitors for the First Respondent to notify the Applicant by letter sent by prepaid post within 7 days of today’s date of the orders made today and of the effect of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:  10 May 2017