Emz17 v Minister for Immigration

[2018] FCCA 462

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 462

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: EMZ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3117 of 2017

Judgment of: Judge Emmett

Hearing date: 27 February 2018

Date of Last Submission: 27 February 2018

Delivered at: Sydney

Delivered on: 27 February 2018

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondents: Mr Max Gao
Australian Government Solicitor

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3117 of 2017

EMZ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

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 9 October 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. In support the first respondent’s solicitor, Mr Gao, tendered a letter marked Exhibit 1R, dated 16 February 2018, on the first respondent’s solicitor’s letterhead and addressed to the applicant at the applicant’s address for service in Australia.

3. Exhibit 1R enclosed, by way of service, a copy of the first respondent’s submissions and reminded the applicant of the hearing listed today at 9:30am and provided the address of the courtroom. Exhibit 1R also informed the applicant that if there was no appearance by or on behalf of the applicant, his application may be dismissed with costs.

4. I note that the applicant attended a directions hearing on 13 November 2017, and was provided with the assistance of an interpreter. On that occasion, he was given leave to file and serve an Amended Application, any further evidence and submissions in support of his application by 13 February 2018. No documents have been filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

5. 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.

6. I note that at that directions hearing, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

7. The matter was listed for hearing today at 9:30am. It is now 10:35am. The matter has been called on at least two occasions, the most recently being less than five minutes ago. Further, there has been no communication received from the applicant by the first respondent’s solicitors or by the Court. 

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

9. Accordingly, the proceeding before this Court 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

Date: 8 March 2018