End17 v Minister for Immigration

[2018] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

END17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 461

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: END17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Applicant: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3120 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 Respondent: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3120 of 2017

END17

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 rule 13.03C(1)(c) of the Federal Circuit Court Rules, by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support, the first respondent’s solicitor, Mr Keevers, tendered a letter marked exhibit 1R, dated 20 February 2018 on Sparke Helmore Lawyers letterhead addressed to the applicant at the applicant’s address for service. Exhibit 1R enclosed the first respondent’s submissions and informed the applicant that the matter is listed for hearing today at 9.30am, before me. The letter provides the address of the courtroom and informs the applicant if the applicant does not attend that the respondent would seek to have the matter dismissed with costs.

3. The applicant attended a directions hearing before a Registrar of this Court on 13 November 2017. On that occasion, the applicant was given leave to file an amended application, any further evidence and submissions. The applicant’s application for an extension of time was set down for hearing at that directions hearing today at 9.30m, and the directions provided the address and location of the courtroom. 

4. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. I am informed by Mr Keevers that he has attempted to telephone the applicant on the applicant’s mobile number identified on the applicant’s affidavit, filed 9 October 2017, and Mr Keevers informed me that the number was no longer operable. 

5. The matter was listed for hearing at 9.30am this morning. It is now 10:00am. The matter has been called on at least two occasions, the most recently being within the last five minutes. There has been no communication received from the applicant either by the Court or the first respondent’s solicitor seeking an adjournment or for any other reason. 

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

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

8. The proceeding before this Court, commenced by way of application filed on 9 August 2017, should be dismissed with costs.

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

Date: 1 March 2018