Patel v Minister for Immigration

[2017] FCCA 1072

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1072

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) rr.13.03C

Applicant: VISHNUBHAI KESHAVLAL PATEL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 527 of 2017

Judgment of: Judge Emmett

Hearing date: 22 May 2017

Date of Last Submission: 22 May 2017

Delivered at: Sydney

Delivered on: 22 May 2017

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Mr Joel Palte
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 527 of 2017

VISHNUBHAI KESHAVLAL PATEL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

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) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 24 February 2017, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Mr Palte, read the affidavit of Breanna Gabrielle Garreffa affirmed 19 May 2017. That affidavit was marked ‘Exhibit 1R’.

3. Exhibit 1R annexed a copy of a letter sent to the applicant on 17 May 2017 addressed to the applicant at the applicant’s address for service in Australia.  

4. The letter enclosed by way of service, the first respondent’s outline of submissions and provided the date, time, presiding officer and location of today’s hearing. The letter also informed the applicant that if the applicant did not attend, the first respondent may seek to have the matter dismissed with costs for non-appearance. Exhibit 1R also annexed a copy of an email, in identical terms with the letter, sent to the applicant and a copy of a Toll Track and Trace confirmation in respect of that letter.

5. The applicant attended a directions hearing before a registrar of this Court on 13 April 2017. On that occasion, the applicant was given leave to file and serve any further evidence and written submissions in support of the application. The matter was set down for hearing today on the applicant’s application for an extension of time to seek judicial review of a decision of the Administrative Appeal Tribunal dated 17 January 2017.

6. The directions made on 13 April 2017 also provided that in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice.

7. As stated above, the matter was set down for hearing on the applicant’s application for an extension of time today at 9.30am. It is now 10.45am.

8. The matter has been called at least twice outside the Courtroom, the last occasion being less than five minutes ago.

9. There has been no communication received from the applicant, either by the Court or the first respondent’s solicitor, seeking an adjournment of today’s hearing, or for any other reason.

10. Based on the evidence before me, I am satisfied that the applicant is aware of today’s scheduled hearing and, for whatever reason, has chosen not to attend today’s scheduled hearing. 

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

12. Accordingly, the proceeding before this Court, commenced by way of application filed on 24 February 2017, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

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

Date: 29 May 2017