SZVZR v Minister for Immigration

[2016] FCCA 515

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 515

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

Applicant: SZVZR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 117 of 2015

Judgment of: Judge Emmett

Hearing date: 10 March 2016

Date of Last Submission: 10 March 2016

Delivered at: Sydney

Delivered on: 10 March 2016

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondents: Ms Hailey Musgrove
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 117 of 2015

SZVZR

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 19 January 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support, the solicitor for the first respondent, Ms Hailey Musgrove, read an affidavit affirmed by her on 12 January 2016.

3. Ms Musgrove’s affidavit annexed copies of a ‘Client Detail’ report and an ‘Interval Calculator’ report from the Department of Immigration and Border Protection’s computer database, the ‘Integrated Client Services Environment’. These records indicate that the applicant departed Australia on 23 December 2015.

4. On 2 April 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 21 May 2015. Additionally, the applicant was provided with a copy of the applicable costs schedule of the Court. The matter was set down for final hearing on 24 August 2016, before me.

5. There have been no documents filed by or on behalf of the applicant, either in accordance with those directions or otherwise.

6. On 22 December 2015, the applicant’s solicitor filed a ‘Notice of Intention to Withdraw as Solicitor’ and provided the applicant’s new address for service as Wickham Point Immigration Detention Centre at Wickham Point in the Northern Territory.

7. On 19 February 2016, the solicitor for the first respondent, Ms Musgrove, wrote to my Chambers requesting that the matter be brought forward in light of the evidence relating to the applicant’s departure from Australia in December 2015. On 24 February 2016, my Chambers wrote to the parties at their addresses for service in Australia, advising that the matter had been relisted to today at 9:30am.

8. It is now 10:00am. The matter was called outside on at least two occasions, the last of which was not more than 10 minutes ago. 

9. Whilst there were communications between the applicant’s solicitor and the first respondent’s solicitor up to the time of the applicant’s departure from Australia, there has been no other communication from or on behalf of the applicant received either by the Court or the first respondent’s solicitor, seeking an adjournment of today’s hearing or for any other reason.

10. I also note that order 16 of the Orders made by the Registrar on 2 April 2015 stated that, in the event there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the applicant’s application may dismissed without further notice.

11. Based on the evidence before me, I am satisfied that the applicant departed Australia on 23 December 2015. 

12. I am satisfied that the orders sought by the first respondent are appropriate.

13. Accordingly, the proceeding before this Court, commenced by way of application filed on 19 January 2015, 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 21 March 2016