Eax16 v Minister for Immigration

[2017] FCCA 1726

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1726

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: EAX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Applicant: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3704 of 2016

Judgment of: Judge Emmett

Hearing date: 25 July 2017

Date of Last Submission: 25 July 2017

Delivered at: Sydney

Delivered on: 25 July 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Mr Rowan White
Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3704 of 2016

EAX16

Applicant

And

MINISTER FOR IMMIGRATION & 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 22 December 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, Mr White, tendered a letter dated 17 May 2017 from the first respondent solicitors to the applicant at the applicant’s address for service in Australia.  That document was marked ‘Exhibit 1R’.

3. Exhibit 1R enclosed, by way of service, a copy of the first respondent’s submissions, and confirmed the day, date, time and location of today’s scheduled hearing. Exhibit 1R also informed the applicant that the applicant is required to attend the scheduled hearing and that if there was no appearance the first respondent may, without further notice, seek orders that the application be dismissed with costs.

4. I note that the applicant attended a First Court Date before a Registrar of this Court on 4 May 2017. On that occasion, the applicant was given leave to file an amended application and any further evidence in support of her application. The applicant was also directed to serve written submissions in support of the application. I note that no document has been filed by or on behalf of the applicant, either in accordance with those directions or otherwise. 

5. I also note that Order 11 of those Orders 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. The matter was set down for hearing pursuant to r.44.12 of the Rules today at 9.30am before me. It is now 10.10am. The matter has been called at least three times outside, the last occasion being less than five minutes ago.

7. There has been no communication received by or on behalf of the applicant, either from 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 22 December 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

Associate:

Date:  7 August 2017