Huang v Minister for Home Affairs

[2019] FCCA 966

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 966

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

First Applicant: YONGPING HUANG

Second Applicant: XIATONG YIN

Third Applicant: JUNZHOU YIN

Fourth Applicant: YINTAO YIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3161 of 2018

Judgment of: Judge Emmett

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Sydney

Delivered on: 10 April 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3161 of 2018

YONGPING HUANG

First Applicant

XIATONG YIN

Second Applicant

JUNZHOU YIN

Third Applicant

YINTAO YIN

Fourth 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 that the proceeding before this Court commenced by way of application, filed on 13 November 2018, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”), by reason of the failure of the applicants to attend today’s scheduled hearing. 

2. On 6 December 2018, the matter was fixed for a directions hearing before a Registrar of this Court and there was no appearance by or on behalf of the applicants at that time. As a result, the matter was adjourned to 10 December 2018 for further directions before the Registrar.

3. On 10 December 2018, the first respondent’s solicitor appeared on behalf of both parties. By consent, directions were made in which the applicants were given leave to file and serve an Amended Application and any further evidence together with written submissions in support of their application. On that occasion the matter was fixed for final hearing before Judge Street on 21 March 2019 at 9:30am.

4. There has been no document filed by or on behalf of the applicants either in accordance with those directions or otherwise.

5. On 18 March 2019, Orders were made by Judge Street in chambers vacating the hearing date on 21 March 2019 and fixing the matter for hearing on 10 April 2019 at 9:30am. 

6. On 22 March 2019, Orders were made by Judge Street in Chambers varying the time for hearing today from 9:30am to 2:15pm this afternoon. 

7. The orders made on 18 March 2019 identified the location of the courtroom in which Judge Street sits. That courtroom is next door to my courtroom. The matter has been transferred to me for hearing.

8. The matter has been called on at least two occasions this afternoon, the most recently being within the last five minutes. The time is now 2:32pm. Had the applicants or their legal representative been in the precinct of Judge Street’s courtroom they would unquestionably have heard the matter being called from outside my courtroom.

9. There has been no communication received by or on behalf of the applicants either by the respondent’s solicitor or by the Court seeking an adjournment of today’s hearing or for any other reason.

10. Counsel for the first respondent, Mr Greg Johnson, tendered a copy of email correspondence from 21 March 2019 to 22 March 2019 among the first respondent’s solicitor, Judge Street’s chambers and the applicants’ legal representative, as identified on the applicants’ initiating application filed on 13 November 2018. That email correspondence informed the parties of the listing of the matter for hearing today at 2:15pm. That email correspondence was marked Exhibit 1R.

11. I am informed from the bar table by Mr Johnson that attempts have been made to contact the applicants’ solicitor and those attempts have been to no avail. The last attempt was made just prior to the emails in Exhibit 1R (being 20 March 2019). 

12. In the circumstances, I am satisfied that the applicants are aware of today’s hearing and for whatever reason have chosen not to attend.

13. In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.

14. Accordingly, the proceeding before this Court, commenced by way of application filed on 13 November 2018, should be dismissed pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicants to attend today’s scheduled hearing with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 April 2019