Parkash v Minister for Immigration & Border Protection

[2014] FCCA 1291

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKASH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1291

Catchwords:
MIGRATION – Migration Review 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(1)(c)

Applicant: OM PARKASH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1093 of 2014

Judgment of: Judge Emmett

Hearing date: 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Sydney

Delivered on: 19 June 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Ms Brooke Griffin (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1093 of 2014

OM PARKASH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW 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 22 April 2014, be dismissed pursuant to rule 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. On 2 June 2014, the applicant attended a directions hearing before me and on that occasion I explained to the applicant that the court has no power to interfere with the decision of the tribunal unless the court is satisfied that the tribunal’s decision is affected by a mistake that goes to its jurisdiction. 

3. The grounds in the applicant’s application filed on 22 April 2014 are as follows:

   “1.  Jurisdictional error and lacked jurisdiction.

   2. Error in interpretation of legislation.

   3. Natural justice.”

4. I explained to the applicant that those grounds made bare assertions that did not disclose an error capable of review by this court. I further explained to the applicant that under the rules of this court, if the grounds of his application did not raise an arguable case for the relief claimed, that his application may be dismissed. I also explained to the applicant the cost consequences that may flow to him if he was unsuccessful in his application. The applicant then confirmed that he wished to continue with his application for judicial review of the tribunal’s decision.

5. For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence by way of affidavit and submissions in support by 13 June 2014. The applicant was provided with the contact details of legal services providers and interpreting and translation services, together with copies of the relevant cost schedule of this court and r.44.12 of the Rules, being the rule pursuant to which the applicant’s matter was set down for hearing today.

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

7. The matter was set down for hearing today at 10 am.  It is now 10.46.  The applicant has been called outside on at least two occasions, the most recent being less than five minutes ago.  There has been no communication received either by this court or by the first respondent or the first respondent’s solicitor seeking an adjournment of today’s hearing or for any other reason. 

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

9. Accordingly, the proceeding before this Court commenced by way of application on 22 April 2014 should be dismissed with costs. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 June 2014