Fnu18 v Minister for Home Affairs

[2019] FCCA 699

FEDERAL CIRCUIT COURT OF AUSTRALIA

FNU18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 699

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

Applicant: FNU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   SYG 2950 of 2018

Judgment of: Judge Emmett

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Sydney

Delivered on: 13 March 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2950 of 2018

FNU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(As Corrected)

1. The first respondent seeks an order that the proceeding before this Court commenced by way of application, filed on 22 October 2018, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support, the first respondent read the affidavit of Kim Nguyen, affirmed 11 March 2019. That affidavit annexed a copy of a letter from the first respondent’s solicitor addressed to the applicant at the applicant’s address for service, dated 6 March 2019, enclosing by way of service the first respondent’s submissions and reminding the applicant of the date, time and location of today’s hearing. That letter also informed the applicant that if the applicant did not attend today’s scheduled hearing the first respondent may seek to have the matter dismissed with costs for non-appearance.

3. The applicant attended a directions hearing before a registrar of this Court on 12 November 2018. On that occasion, directions were made giving the applicant leave to file an Amended Application, any further evidence and submissions in support of his application for judicial review. However, there has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise.

4. The matter was set down for hearing today before Judge Street at 10:15am. The matter was transferred to me this morning by Judge Street. My courtroom is right next door to the courtroom of Judge Street.

5. It is now 10:35am. The matter has been called on at least two occasions, the most recently being within the last five minutes. There has been no appearance by or on behalf of the applicant.

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

7. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and for whatever reason has chosen not to attend.  Accordingly, the orders sought by the first respondent are appropriate and the proceedings should be dismissed with costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 20 March 2019

Correction (29 March 2019)

Solicitors for the Respondents changed.