Sikari v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIKARI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 697

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

First Applicant:

MITA ASHISH SIKARI

Second Applicant:

SIKARI ASHISH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3659 of 2016

Judgment of:

Judge Emmett

Hearing date:

20 March 2019

Date of Last Submission:

20 March 2019

Delivered at:

Sydney

Delivered on:

20 March 2019

REPRESENTATION

Applicants:

No appearance by or on behalf of the applicants

Solicitors for the Respondents:

Mr Aaron Moss
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3659 of 2016

MITA ASHISH SIKARI

First Applicant

SIKARI ASHISH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 20 December 2016, be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) by reason of the failure of the applicants to attend today's scheduled hearing.
In support, the first respondent tendered two documents. The first an email marked Exhibit 1R attaching a letter to the applicant, dated 13 March 2019. The email was addressed to the applicant’s email address, being the email address identified on the initiating application, filed on 20 December 2016. I note there has been no other document filed by or on behalf of the applicants since that date.
The letter forming part of Exhibit 1R is the same as a letter dated 14 March 2019, marked Exhibit 2R, addressed to the applicant at her address for service in Australia. Both letters are in identical terms and enclose, by way of service, the first respondent’s outline of submissions, filed on 13 March 2019. Both letters remind the applicants that the matter was listed for hearing today at 10:15am and provide the location of the Court. Both letters also informed the applicants that if they failed to attend the hearing, the first respondent may seek to have the proceeding dismissed with costs.
On the record of listing before me, it states that the applicant appeared in person at a directions hearing before a Registrar of this Court on 4 May 2017. However, it does not identify whether it was the first or the second applicant that appeared or whether it was both applicants. In any event, the “Applicant in person” attended the directions hearing before Registrar Morgan on 4 May 2017. On that occasion, the applicants were given leave to file and serve an amended application, any further evidence and submissions in support of their application for judicial review of a decision of the Administrative Appeals Tribunal, dated 23 November 2016.
At that directions hearing on 4 May 2017, the matter was set down for a final hearing today at 10:15am before me. As stated above, there has been no document filed by or on behalf of the applicants, either in accordance with those directions or otherwise. Nor has there been any communication received from either of the applicants by the first respondent’s solicitor or by the Court seeking an adjournment of today’s hearing or for any other reason.
The time is now 10:34am. The matter has been called on at least two occasions this morning, the most recently being within the last 10 minutes.
I am satisfied the applicants are aware of today’s scheduled hearing, given that at least one of them attended the directions hearing, and in light of the evidence before me contained in Exhibit 1R and Exhibit 2R. In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 20 December 2016, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicant to attend today’s scheduled hearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 27 March 2019

The applicant, Mr. Sikari, sought judicial review of a decision made by the Administrative Appeals Tribunal. The dispute concerned the Tribunal's dismissal of Mr. Sikari's application for review of a decision made by the Minister for Immigration. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Administrative Appeals Tribunal had erred in dismissing Mr. Sikari's application for review due to his non-appearance at a scheduled hearing. This involved considering the application and interpretation of rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), which permits the dismissal of an application where a party fails to appear at a hearing.

Emmett J found that the Tribunal had not erred in its application of rule 13.03C(1)(c). The Court reasoned that the rule provided a clear basis for the Tribunal to dismiss an application when a party, or their representative, failed to appear at a scheduled hearing. In this instance, Mr. Sikari did not appear, nor was an appearance made on his behalf, and no explanation for his absence was provided to the Tribunal. Consequently, the Tribunal was entitled to proceed with the dismissal of his application.

The application for judicial review was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established