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:
TIAN QIU
First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent:
ADMINISTRATIVE APEALS TRIBUNAL
File Number:
SYG 459 of 2017
Judgment of:
Judge Emmett
Hearing date:
5 June 2018
Date of Last Submission:
5 June 2018
Delivered at:
Sydney
Delivered on:
5 June 2018
REPRESENTATION
No appearance by or on behalf of the Applicant
Solicitors for the Respondents:
Ms Bernadette Rayment (Sparke Helmore)
FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY
SYG 459 of 2017
TAN QIU
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APEALS TRIBUNAL
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), that the proceeding before this Court, commenced by way of application filed on 16 February 2017, be dismissed by reason of the failure of the applicant to attend today’s scheduled hearing.
In support, the first respondent’s solicitor, Ms Rayment, tendered a letter dated 13 April 2017 from the first respondent’s solicitors, addressed to the applicant at the applicant’s address for service in Australia. That document was marked Exhibit 1R.
Exhibit 1R enclosed by way of service a copy of the Court Book filed in this matter on 13 April 2017. The letter also informed the applicant of the hearing today, provided the time and the location of the courtroom, and informed the applicant that if the applicant did not attend, the first respondent would seek orders from the Court that the matter be dismissed and that the applicant pay the first respondent’s costs.
I note that the applicant attended a directions hearing on 9 March 2017 before a Registrar of this Court, and on that occasion was given leave to file and serve an amended application, any further evidence and submissions in support of the application. On that occasion the matter was set down for final hearing today at 10.15am, before me.
The applicant attended that directions hearing with the assistance of an interpreter, and, I am informed by Ms Rayment, signed a copy of those orders.
At today’s hearing, the first respondent read the affidavit of Haley Aitken, affirmed 25 May 2018, deposing to the applicant’s departure from Australia on 1 October 2017 and annexing various screenshots of the Department of Immigration’s ‘Integrated Client Services Environment’ (ICSE) computer database.
In the circumstances I am satisfied that the applicant was aware of today’s hearing, and I am also satisfied that the applicant left Australia on 1 October 2017.
Accordingly, the orders sought by the first respondent are appropriate.
The proceeding before this Court, commenced by way of application filed on 16 February 2017, 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: 12 June 2018
Details
AGLC
Qiu v Minister for Immigration [2018] FCCA 1456
Case
[2018] FCCA 1456
Decision Date
CaseChat Overview and Summary
The applicant, Mr. Qiu, sought judicial review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the Tribunal's dismissal of Mr. Qiu's application for review of a decision made by the Minister for Immigration, which had refused to grant him a visa. The matter came before Emmett J of the Federal Circuit Court of Australia.
The primary legal issue before the Court was whether the Tribunal had erred in dismissing Mr. Qiu's application for review due to his non-appearance at a scheduled hearing. This involved considering the application of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and whether the Tribunal had properly exercised its discretion under that rule.
Emmett J found that the Tribunal had not erred in dismissing the application. His Honour noted that the applicant had been notified of the hearing date and time, and there was no evidence to suggest that he had a valid reason for his non-appearance. The Court applied the principle that a party has a responsibility to attend scheduled hearings, and in the absence of a reasonable excuse, the Tribunal is entitled to proceed with the dismissal of the application. The Court therefore upheld the Tribunal's decision.