EGA17 v Minister for Immigration

[2018] FCCA 2189

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2189

Catchwords:
MIGRATION – Application for review of a decision made by the Immigration Assessment Authority – no appearance for or by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.13.03C(1)(c)

Applicant: EGA17

First Respondent:  MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:  IMMIGRATION ASSESSMENT AUTHORITY

File Number: DNG 30 of 2017

Judgment of: Judge Young

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Darwin

Delivered on: 26 July 2018

REPRESENTATION

Counsel for the Applicant: No appearance for or by the Applicant

Counsel for the First Respondent: Mr Liveris

ORDERS

1. The application filed 21 September 2017 be dismissed pursuant to section 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. Costs are awarded to the Respondent in the sum of $7,328.00.

3. The Applicant may apply to have the matter relisted within 28 days from the date of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 30 of 2017

EGA17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review of a decision of the Immigration Assessment Authority.  The matter was listed for hearing at 10.15 this morning.  The matter was called on at 10.45 and there was no appearance by the applicant. 

3. I note that the order of the registrar on 27 October 2017 was to list the matter for final hearing on 13 September 2018 at 10.15 am.  A change of hearing date was made by the registry it would appear.  The reasons for that are not clear to me, but, in any event, on 12 December 2017 a notice was sent to the applicant at his email address provided on his application, that is, an email address of, as I interpret it, [email protected].  That could be pronounced Sugiannuja. 

4. The listing notice dated 12 December 2017, as I say, notes that the listing notice advising the change of hearing date was sent to that email address on 12 December 2017.  Apart from the application filed on 12 September 2017, there is no evidence on the Court file of any communication between the applicant and the Court at all.  On making inquiries of counsel for the Minister who appeared this morning, I was told by Mr Liveris, after he obtained instructions from his instructing solicitor who was present in Court, that the Minister’s outline of submissions was sent to the applicant at the same email address that I have referred to on 19 July 2018 and there was nothing to indicate that that email address was inactive, in other words, the email did not “bounce,” that is, there was no indication from the server that the email was not delivered. 

5. Similarly, on the same date, 19 September 2018, the outline of submissions were sent separately by express post to the address provided, the applicant’s address for service, that is, Unit 3/47 Charles Street, Stuart Park in the Northern Territory.  Again, Mr Liveris told me on seeking instructions from his instructing solicitor, that there was nothing to indicate that that letter was not delivered at that address.  There was no return to sender, for example. 

6. In all the circumstances, the applicant’s failure to appear today is unexplained and the respondent seeks an order dismissing the application in default of appearance pursuant to rule 13.03C(1)(c). I am satisfied that that is an appropriate order to make and I do so. 

7. I will make an order for costs in the sum sought of $7,328. 

8. I am also going to make the usual order when orders are made in default of appearance, that is, if a person makes an application within 28 days supported by affidavit, the matter may be relisted. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 9 August 2018