Pham and Ors v Minister For Immigration and Anor (No.2)

[2020] FCCA 1509

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1509

Catchwords:
MIGRATION – Failure of first applicant to appear at final hearing – no reasonable excuse provided by applicant for non-appearance at hearing – application for review dismissed.

Legislation:

Federal Circuit Court Rules2001 (Cth), r.13.03C(1)(c).

First Applicant: HIEU MINH PHAM

Second Applicant: THI MINH THANG HOANG

Third Applicant: HUONG THAO HOANG

Fourth Applicant: MINH TUAN HOANG

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISRATIVE APPEALS TRIBUNAL

File Number: BRG 347 of 2017

Judgment of: Judge Egan

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Brisbane

Delivered on: 4 June 2020

REPRESENTATION

Applicants: No appearance

Counsel for the Respondent: Mr Byrnes

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for review filed on 18 April 2017 be dismissed pursuant to the provisions of Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the non-appearance of the Applicants.

2. The First Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 347 of 2017

HIEU MINH PHAM

First Applicant

THI MINH THANG HOANG

Second Applicant

HUONG THAO HOANG

Third Applicant

MINH TUAN HOANG

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before the Court on 20 March 2020.  At that time, the first applicant appeared by telephone, assisted by an interpreter.  Mr Byrnes of counsel appeared on behalf of the first respondent. 

2. On 20 March 2020, the first applicant raised a number of matters going to his request for an adjournment of the hearing that day.  One of those matters was the fact that he was unable to appear at Court because he was the then carer for his elderly parents.

3. The Court granted the first applicant the application for the adjournment on 20 March 2020.  The matter was then listed for hearing on a final basis before the Court for 4 June 2020. 

4. The Court today has marked as exhibits a number of items of correspondence entered into between the first applicant and chambers, between chambers and the parties to the proceeding, as well as correspondence between the applicant and Ms Anderson, who is the lawyer instructing Mr Byrnes of counsel on behalf of the first respondent.  That email correspondence is respectively marked Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4 and Exhibit 5.

5. It is apparent from the email sent by the first applicant to Ms Anderson on 1 June 2020 that the applicant wanted to conclude the proceedings – the term “close my file” used by the applicant indicated as much based upon the circumstances as set out by the first applicant in such email.

6. The Court is satisfied that the applicant has failed to appear before the Court in circumstances where he was well aware that the matter was listed for hearing. No explanation was advanced by the applicant for his non-appearance before the Court today.

7. Mr Byrnes of counsel on behalf of the first respondent made application for dismissal of the proceeding before the Court pursuant to the provisions of r. 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth). Due to the absence of the first applicant before the Court, and further because no reason has been advanced by the applicant setting out a reasonable basis for the lack of appearance, the Court is minded to grant the application made on behalf of the first respondent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan.

Associate:

Date: 15 June 2020