Getahun v Minister for Home Affairs

[2019] FCCA 1707

FEDERAL CIRCUIT COURT OF AUSTRALIA

GETAHUN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1707

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: AMELMAL TASSIE GETAHUN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APEALS TRIBUNAL

File Number: SYG 656 of 2019

Judgment of: Judge Emmett

Hearing date: 19 June 2019

Date of Last Submission: 19 June 2019

Delivered at: Sydney

Delivered on: 19 June 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Solicitor for the Respondents: Mr Siva Valliappan
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 656 of 2019

AMELMAL TASSIE GETAHUN

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 pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) that the proceeding before this Court, commenced by way of application filed on 19 March 2019 be dismissed, by reason of the failure of the applicant to attend today’s scheduled hearing. 

2. In support of that application the first respondent’s solicitor tendered three documents. 

3. The first document, marked Exhibit 1R, is a copy of an email addressed to Mr Benjamin Kau, being the person who signed the initiating application and the lawyer's certification. Mr Kau also describes himself as a paralegal on the face of the initiating application. Exhibit 1R requests Mr Kau provide the contact details of the applicant including her phone number, postal address and email address. Exhibit 1R refers to an earlier email, a copy of which also forms part of Exhibit 1R, being another email sent to Mr Kau, dated 15 April 2019. That email also requested the applicant’s phone number, postal address and email address as soon as possible. It appears there was no response to either of those emails from Mr Kau.

4. On 23 April 2019 Mr John Tsaousidis, being a solicitor in the employ of the first respondent’s legal representative, telephoned the applicant who confirmed her contact details as follows:

   “0403 544 172

   64A Mort Street Blacktown NSW 2148

   [email protected]”

5. That second document, being a file note extracted in part above, was marked Exhibit 2R.

6. The third document, marked Exhibit 3R, is a copy of an email from the first respondent's solicitor to the applicant at the applicant's identified email address in Exhibit 2R. Exhibit 3R attached a Notice of Address for Service form for the applicant to complete and provided the address of the Court Registry for the applicant to file that document as soon as possible.

7. The first respondent's solicitor also read the affidavit of Stephanie Giourgas, affirmed 18 June 2019, annexing a copy of a letter sent by courier to the applicant at the postal address identified in Exhibit 2R. That letter enclosed by way of service a copy of the first respondent's outline of submissions and provided the date, time and location of today's hearing. That letter also informed the applicant that if the applicant failed to attend today’s scheduled hearing that the first respondent may seek to have the matter dismissed (with costs) for non-appearance. Ms Giourgas also deposed to the fact that a copy of that letter was emailed to the applicant at the email address identified in Exhibit 2R.

8. The applicant attended a first court date directions hearing before a Registrar of this Court on 11 April 2019. On that occasion the applicant was given leave to file and serve an Amended Application, any further evidence and submissions in support of the application. The applicant was also provided at that directions hearing with the contact details of legal services provided and translating and interpreting services in documents headed in the English. On that occasion, the matter was set down for an extension of time hearing on 19 June 2019 at 9:30am before me.

9. The time is now 11:14am. The matter has been called on at least two occasions, the most recently being within the last ten minutes.

10. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. Further, there has been no communication received from the applicant either by the first respondent's solicitor or the Court seeking an adjournment of today's hearing or for any other reason. 

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

12. Accordingly, the orders sought by the first respondent are appropriate and the proceeding before this Court commenced by way of application filed on 19 March 2019 should be dismissed with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  21 June 2019