SZTIH v Minister for Immigration & Border Protection

[2015] FCCA 2975

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2975

Catchwords:
MIGRATION – Refugee 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 Rules 2001 (Cth), r.13.03C

Applicant: SZTIH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2310 of 2013

Judgment of: Judge Emmett

Hearing date: 4 November 2015

Date of Last Submission: 4 November 2015

Delivered at: Sydney

Delivered on: 4 November 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2310 of 2013

SZTIH

Applicant

And

MINISTER FOR IMMIGRATION & 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 Court Rules2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 30 September 2013, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 24 February 2014, the applicant attended a directions hearing before me, where he had the assistance of a Tamil interpreter. On that occasion, the applicant was given leave to file and serve an amended application and any further evidence and submissions in support of his application.  The applicant was also provided with the contact details of legal services providers and translating and interpreting services, in documents headed in his own language. The matter was set down for final hearing on 19 March 2015 at 10:15am, before me.

3. At the directions hearing, the applicant completed a document titled ‘First Court Date – Migration Matters: Information from (Unrepresented) Applicants’ (“the Information Sheet”). In completing the Information Sheet, the applicant identified as his home address an address different to that identified on his initiating application, filed on 30 September 2013.  A Notice of Change of Address was not filed by the applicant.

4. On 13 March 2015, the hearing on 19 March 2015 was vacated.

5. On 26 October 2015, Orders were made in Chambers vacating the Orders made on 24 February 2014 in relation to the filing and serving of written submissions by the parties, and providing a further timetable in this regard. My Chambers also wrote to the parties informing them that the matter was listed for final hearing on 4 November 2015 at 10:15am, before me.

6. There was no document filed by on or behalf of the applicant either in accordance with the directions made on 24 February 2014 or the directions made on 26 October 2015, or otherwise. 

7. In support of the application for dismissal pursuant to r.13.03C(1)(c) of the Rules, the first respondent tendered two letters. The first is a letter dated 28 October 2015 from the first respondent’s solicitors to the applicant, marked Exhibit 1R. The second is a letter from my Chambers addressed to both parties informing them that the matter was set down for hearing today. That letter was marked Exhibit 2R.

8. Exhibit 1R was sent to the address identified by the applicant on the Information Sheet, whereas Exhibit 2R was sent to the applicant at both the applicant’s address for service identified in his initiating application, filed on 30 September 2013, and the new address identified in the Information Sheet. 

9. Exhibit 2R clearly informed the applicant that the matter was listed for hearing on 4 November 2015 at 10:15am, and provided the location of the Courtroom.

10. Exhibit 1R also informed the applicant that the matter was listed for hearing on 4 November 2015 at 10:15am, provided the location of the Courtroom, and enclosed, by way of service, the first respondent’s submissions. Exhibit 1R also advised the applicant that if the applicant failed to appear at today’s hearing, then orders may be sought by the first respondent that the applicant’s application be dismissed with costs, without further notice. 

11. It is now 10:52am. The matter has been called outside on at least two occasions, the most recent being less than 5 minutes ago.

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

13. The first respondent also informed the Court that the first respondent had attempted to contact the applicant this morning on the mobile telephone number provided by the applicant in his initiating application but that the number provided was no longer in operation.

14. 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. 

15. The grounds of review identified by the applicant in his initiating application are as follows:

    “1. RRT decision is unsupported by any evidence.

    2. RRT did not fully deal with my problem.”

16. Plainly, those grounds are wholly unparticularised and, by themselves, do not disclose an error capable of review by this Court. 

17. In the circumstances, the orders sought by the first respondent are appropriate.

18. Accordingly, the proceeding before this Court, commenced by way of application filed on 30 September 2013, 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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  9 November 2015