DUGGAL v Minister for Immigration and BORDER PROTECTION

[2014] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUGGAL v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1783

Catchwords:
MIGRATION – Migration Review 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) r.13.03, 44.12

Applicant: RITESH DUGGAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 955 of 2014

Judgment of: Judge Emmett

Hearing date: 30 July 2014

Date of Last Submission: 30 July 2014

Delivered at: Sydney

Delivered on: 30 July 2014

REPRESENTATION

No appearance was made by or on behalf of the applicant.

Solicitors for the Respondents: Ms Chloe Hillary
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 955 of 2014

RITESH DUGGAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

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 8 April 2014, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. The applicant appeared before me at a directions hearing on 17 June 2014 and, on that occasion, was given leave to file and serve an Amended Application and any further evidence and submissions in support of her application by 7 July 2014. On that occasion, I explained to the applicant that under the Rules, his application may be dismissed if the Court is not satisfied that the application raises an arguable case. The grounds of the applicant’s application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was also provided with a copy of r.44.12 of the Rules, pursuant to which the matter was set down for hearing today, a copy of the applicable costs schedule and the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

4. There has been no document filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

5. By consent, and at the request of the applicant, the hearing on 21 July 2014 was adjourned until today.

6. The first respondent’s solicitor, Ms Hillary, tendered an email sent by her to my Chambers yesterday, 29 July 2014, and marked Exhibit 1R.  That email stated that the applicant had contacted Ms Hillary in the afternoon on 29 July 2014, requesting a further adjournment of the hearing today on medical grounds, but did not produce a medical certificate.

7. The first respondent opposes any adjournment of the hearing today and Exhibit 1R discloses that that information was communicated to the applicant. Exhibit 1R further discloses that the applicant was notified that if he failed to attend today’s hearing, the first respondent may seek to have the matter dismissed with costs for non-appearance, pursuant to r.13.03C(1)(c) of the Rules.

8. There has been no communication received from the applicant by the Court seeking an adjournment of today’s hearing, or otherwise.

9. To the extent that the first respondent, by Exhibit 1R, has informed the Court that a request was received yesterday afternoon from the applicant seeking an adjournment of today’s hearing, I note that there is no evidence before this Court of any reason why such an adjournment should be made. It is clear that the applicant is aware of today’s hearing. 

10. In the circumstances, I am satisfied that the Orders sought by the first respondent should be made, and the proceeding before this Court commenced by way of application, filed on 8 April 2014, should be dismissed with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  7 August 2014