FBS18 v Minister for Home Affairs

[2019] FCCA 1315

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBS18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1315

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – failure of the applicant to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: FBS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2772 of 2018

Judgment of: Judge Driver

Hearing date: 17 May 2019

Delivered at: Sydney

Delivered on: 17 May 2019

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,400.

3. The Court directs that the Minister is to cause a sealed copy of these orders to be served on the applicant at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

4. The Court directs that the transcript of today’s hearing be obtained and placed on the court file.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2772 of 2018

FBS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, there has been no appearance by or on behalf of the applicant when the matter was called.  The matter was listed for a show cause hearing at 9.30m but the applicant did not attend at that time.  I stood the matter in the list until 11.00am but the applicant had still not appeared.  The matter has been called twice at 11.08am and again at 11.33am, and on each occasion there was no answer to the call by the applicant. 

2. On the basis of a telephone conversation between the Minister’s solicitor and a person in the offices of the Minister’s solicitors at about 9.30am, it appears that the applicant visited the solicitors’ office at that time and was advised to attend at 80 William Street.  Exhibit A1 is a letter which was provided to the applicant at that time. 

3. At around 10.15am, my associate was successful in contacting the applicant on his mobile telephone with the assistance of the interpreter at which time the applicant stated that he was on his way home, having had a conversation with someone at the offices of the Minister’s solicitors, which he did not understand.  The applicant was requested to attend the Court at 80 William Street.  He agreed to do so.  In that conversation, the applicant also stated that he had attended the Court at 80 William Street at around 8.00am this morning, but finding no one here, he left.  He was reminded that the hearing had been listed at 9.30am.

4. At 11.10am, my associate received the document marked as exhibit C1, being an email from the registry, stating that the applicant was at the registry at Queens Square and had been told once again to attend here at 80 William Street. 

5. Having waited for the applicant to make his way from Queens Square to the Court, there has again been no appearance.  In the circumstances, the Minister seeks the dismissal of the application on account of the applicant’s non-attendance.  I agree that that is the appropriate course.  There can be no real doubt that the applicant knew where to attend for his hearing and, indeed, when to attend.  His visits to various other locations this morning are at best curious. 

6. I will order that, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

7. I will further order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,400.

8. I will direct that the Minister is to cause a sealed copy of these orders to be served on the applicant at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

9. I will also direct that the Court directs that the transcript of today’s hearing be obtained and placed on the court file.

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

Associate: 

Date:  21 May 2019