Ecm17 v Minister for Immigration

[2018] FCCA 379

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECM17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 379

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), r.13.03C

Applicant: ECM17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2852 of 2017

Judgment of: Judge Emmett

Hearing date: 13 February 2018

Date of Last Submission: 13 February 2018

Delivered at: Sydney

Delivered on: 13 February 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Ada Wong (Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2852 of 2017

ECM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court commence by way of application filed on 14 September 2017 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend today’s scheduled hearing. 

2. The applicant was represented at the first court date on 16 October 2017 by his legal representative, Mr Zipser, of counsel. On that occasion, the Registrar of the Court made orders, inter alia, giving the applicant leave to file and serve an Amended Application, any further evidence and submissions in support of his application. 

3. The matter was set down for final hearing on 5 May 2020 at 10:15am before me on that occasion.

4. On 21 December 2017, the first respondent filed the affidavit of Ada Oi-Yee Wong, sworn 21 December 2017, annexing copies of screen shots from the Department of Immigration and Border Protection file management system showing the applicant’s movement check details.  The documents annexed to Ms Wong’s affidavit show that the applicant departed Australia on 13 December 2017 at 20:51pm and has not returned to Australia.

5. The first respondent tendered a letter dated 21 December 2017, marked Exhibit 1R, which enclosed by way of service, Ms Wong’s affidavit.

6. Exhibit 1R was sent to the applicant at the applicant’s address for service in Australia. 

7. Further, on 16 January 2018, orders were made by the Court vacating the hearing on 5 May 2020 and setting the matter down for final hearing today, 13 February 2018 at 9:30am before me. 

8. It is now almost 10:30am. The matter has been called on at least two occasions and most recently, within the last five minutes. There has otherwise been no communication received from or on behalf of the applicant either by the Court or by the first respondent. 

9. Based on the evidence before me, I am satisfied that the applicant indeed departed Australia on 13 December 2017. 

10. In the circumstances, the orders sought by the first respondent are appropriate.

11. The proceeding before this court commenced by way of application filed on 14 September 2017 should be dismissed pursuant to r.13.03C(1)(c) of the Rules by reason of the applicant’s failure to appear at today’s scheduled hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 February 2018