Khan v Minister for Immigration

[2018] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1221

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: MUHAMMAD ARSALAN KHAN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1303 of 2017

Judgment of: Judge Emmett

Hearing date: 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: SYDNEY

Delivered on: 15 May 2018

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondent: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1303 of 2017

MUHAMMAD ARSALAN KHAN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 1 May 2017, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), by reason of a failure of the applicant to appear at today’s scheduled First Court Date hearing.

2. The applicant attended a directions hearing on 25 May 2017 before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The matter was set down for final hearing on 15 May 2019 at 10:15am before me. I note that the applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. 

3. On 23 June 2017, orders were made by a registrar of this Court extending time to the applicant to file an amended application and any additional evidence.

4. On 17 July 2017, time was further extended to the applicant to file an amended application and any additional evidence. 

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

6. Mr Keevers, solicitor for the first respondent, read the affidavit of Ms Ashworth in support of the application this morning and also tendered some two pages of email correspondence which together were marked Exhibit 1R.

7. Exhibit 1R disclosed that on 6 April 2018, the applicant emailed Ms Ashworth and my associate, saying that he had departed from Australia as his grandfather was ill, and that he did not have a visa so would not be able to return back to Australia to pursue his case, so he wished to withdraw his case. The first respondent, Ms Ashworth, responded to that email by informing the applicant of the proper process for discontinuing his proceeding.

8. I also note that in Exhibit 1R, in her response to the applicant, Ms Ashworth informed the applicant that the first respondent had requested to have the matter relisted for a directions hearing and that if the applicant did not attend, the respondent would seek orders from the Court that the matter be dismissed with costs.

9. I note that there has been no Notice of Discontinuance filed in this matter. 

10. On 10 April 2018, the matter was listed for hearing today at 9:30am. It is now 10:15am.

11. On the evidence before me, I am satisfied that the applicant indeed departed Australia on 8 January 2018 at 7:50 am.  I note the screenshots that are annexed to the affidavit of Ms Ashworth in relation to the applicant’s movements.

12. The matter has been called outside this morning on at least two occasions. There has been no response.

13. Based on the evidence before me, I am satisfied that the applicant is aware of today’s hearing and has, in fact, departed Australia.

14. Accordingly, the orders sought by the first respondent are appropriate, and the proceeding before this Court should be dismissed with costs. 

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

Date:     16 May 2018