Miao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3567

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIAO v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3567

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: XINHE MIAO

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 549 of 2018

Judgment of: Judge Emmett

Hearing date: 9 December 2019

Date of Last Submission: 9 December 2019

Delivered at: Sydney

Delivered on: 9 December 2019

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 549 of 2018

XINHE MIAO

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 2 March 2018, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support, counsel for the first respondent tendered a copy of an email sent to the applicant at her email address identified in her initiating application. That email was marked Exhibit 1R. Exhibit 1R was dated 26 November 2019 and attached a letter sent to the applicant at her address for service in Australia, which enclosed a copy of the first respondent’s submissions. Both the letter and the email reminded the applicant of the hearing today at 10:00am and also informed the applicant that if the she failed to appear, that the first respondent may seek that the application be dismissed with costs without further notice. 

3. On 26 March 2018, the applicant attended a directions hearing before a registrar of this Court where she had the assistance of an interpreter. 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 matter was set down for callover on 13 June 2019 before me. The applicant was also provided at that time with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. 

4. On 13 June 2019, the applicant appeared in person with the assistance of an interpreter. On that occasion, the applicant was again directed to file and serve submissions in support of the application and the matter was set down for hearing today at 10:00am before me.

5. There has been no document filed by or on behalf of the applicant, either in accordance with the directions made by the Court or otherwise. Nor has there been any communication received from the applicant by the Court or by the first respondent seeking an adjournment of today’s hearing or for any other reason. 

6. The time is now 10:30am. The matter has been called on at least 2 occasions, most recently being within the last 5 minutes.

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

8. 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 eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 12 December 2019