Egg18 v Minister for Home Affairs

[2018] FCCA 3068

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGG18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3068

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

Migration Act1958 (Cth) s.477

Applicant: EGG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2290 of 2018

Judgment of: Judge Emmett

Hearing date: 29 October 2018

Date of Last Submission: 29 October 2018

Delivered at: Sydney

Delivered on: 29 October 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitors for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2290 of 2018

EGG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding for this Court commenced by way of application, filed on 17 August 2018, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the applicant’s failure to attend today’s scheduled hearing.

2. In support, the first respondent tendered a document marked Exhibit 1R which relevantly included a letter, dated 25 October 2018, addressed to the applicant at the only address for service provided to the Court by the applicant from the first respondent’s legal representative. That letter enclosed the first respondent’s submissions, notifying the applicant that the matter was listed for an extension of time today at 9:30am before me and that if there was no appearance, the first respondent may without further notice seek orders dismissing the applicant’s application with costs.

3. The first respondent also tendered another document marked Exhibit 2R being orders made by Registrar Cho dated 10 September 2018 and a summary of that first court date which is signed by the applicant dated 10 September 2018 and is also signed by an interpreter who assisted the applicant at that first court date.

4. The orders made on 10 September 2018 included an opportunity for leave to the applicant to file any further evidence to be relied upon together with submissions in support of the applicant’s application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal dated 12 September 2017.

5. The orders made by Registrar Cho on 10 September 2018 also noted that the contact details of legal services providers and translating and interpreting services had been provided to the applicant in documents headed in English on that occasion.

6. The orders further noted 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. 

7. I note that the proceeding in this Court was commenced by way of application, filed on 17 August 2018, some 10 months after the expiration of the 35 day period for application to the Federal Circuit Court for review of a migration decision pursuant to s.477(1) of the Migration Act1958 (Cth).

8. The matter was listed for hearing today at 9:30 am.  It is now 10:20 am.  The matter has been called outside the courtroom on at least two occasions, the most recent being in the last 10 minutes.   

9. There has been no communication received by the Court or the first respondent’s solicitors from the applicant either seeking an adjournment of today’s hearing or for any other reason. 

10. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend. 

11. Accordingly, the orders sought by the first respondent are appropriate and the proceeding before this Court by way of application, filed on 15 October 2018, should be dismissed with costs. 

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

Date: 16 November 2018