Elg18 v Minister for Home Affairs

[2018] FCCA 3535

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELG18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3535

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: ELG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2389 of 2018

Judgment of: Judge Emmett

Hearing date: 3 December 2018

Date of Last Submission: 3 December 2018

Delivered at: Sydney

Delivered on: 3 December 2018

REPRESENTATION

Applicant: Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms Charlotte Saunders
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2389 of 2018

ELG18

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 before this Court commenced by way of application, filed on 28 August 2018, be dismissed, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), by reason of the applicant’s failure to attend today’s scheduled hearing. 

2. The Applicant’s father attended the directions hearing before a Registrar of this Court on 20 September 2018 and in addition to the order appointing him as litigation guardian of the applicant, ELG18, being his daughter, born 3 December 2012, the applicant was given leave to file and serve an Amended Application, any further evidence and submissions in support of the application for judicial review of the decision of the Administrative Appeals Tribunal, dated 1 August 2018.

3. At the request of the first respondent, the matter was set down for a show cause hearing pursuant to r.44.12 of the Rules today at 9:30am before me. A copy of r.44.12 of the Rules was provided to the applicant’s litigation guardian at the directions hearing together with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s litigation guardian’s own language.

4. In support of the application this morning the first respondent’s solicitor, Ms Saunders, read the affidavit of Emilia Ramos, affirmed 30 November 2018. Ms Ramos deposed to the service upon the applicant of the first respondent’s written submissions by way of letter sent, by courier, to the applicant at the applicant’s identified address for service on the initiating application. Ms Ramos also deposed to the applicant being sent a copy of the submissions by email to the applicant’s identified email address. Copies of the letter and the email, both sent on 15 November 2018, were annexed to Ms Ramos’ affidavit. Those documents reminded the applicant of the time and location of the hearing and informed the applicant that in the event that the applicant did not appear, the first respondent would seek to have the matter dismissed with costs.

5. There has been no document filed by or on behalf of the applicant, either in accordance with directions made on 20 September 2018 or otherwise.

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

7. The time is now 9:53am. The matter has been called on at least two occasions, most recently being within the last five minutes.

8. On the evidence before me I am satisfied that the applicant’s litigation guardian is aware of today’s proceeding and for whatever reason her litigation guardian has chosen not to attend.

9. In the circumstances, the orders sought by the first respondent are appropriate, and the proceeding before this Court commenced by way of application, filed on 28 August 2018, should be dismissed with costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  6 December 2018