Teo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 434

FEDERAL CIRCUIT COURT OF AUSTRALIA

Teo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 434

File number(s):	BRG 339 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	23 February 2021
Catchwords:	MIGRATION – non-appearance by Applicant at final hearing of application for review – no reasonable excuse given by Applicant for non-appearance – failure by applicant to comply with an order of the Court – application for review dismissed.
Legislation:	Federal Circuit Court Rules 2001 (Cth) rr 13.03B(1)(c), 13.03C(1)(c).
Number of paragraphs:	6
Date of last submission/s:	23 February 2021
Date of hearing:	23 February 2021
Place:	Brisbane
Applicant:	There being no appearance by or on behalf of the Applicant
Solicitor for the First Respondent	Ms Allen of Sparke Helmore
Second Respondent:	Submitting appearance save as to costs

ORDERS

BRG 339 of 2020

BETWEEN:

MENG HUA TEO

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	23 FEBRUARY 2021

IT IS ORDERED THAT:

1.The Originating Application filed on 19 June 2020 be dismissed pursuant to the provisions of r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (due to the non-appearance of the Applicant) and also pursuant to the provisions of r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (by reason of the Applicant’s default in failing to comply with Order 1 of the Orders of Registrar Carlton made on 8 February 2021).

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,500.00.

EX TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. This matter was listed for hearing today at 9.45 am.  I will mark as Exhibit 1 the notice of listing issued by the Registry of the Court on 10 February 2021.  I will mark as Exhibit 2 an email from Judge’s Chambers advising the parties that the matter would be listed for hearing at 9.45 am today.  And I will mark as Exhibit 3 today’s court list noting that this matter is listed for hearing today in this court. 

2. On 8 February 2021 Registrar Carlton of this court ordered that the applicant file and serve an amended application for review.  The order was as follows: 

   “1. The Applicant is to file and serve an amended application for review, with such amended application to include detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the show cause hearing of the application for review, by 4:00pm on 16 February 2021.”

3. In that order it was further noted by sub-paragraph C as follows:

   “C. In the event that the Applicant fails to comply with Order 1 hereof requiring the particularisation of the Applicant’s claim, the Applicant is liable to have their application dismissed pursuant to the provisions of Rule 13.03B(1)(c) of the Rules, which states: “If an applicant is in default, the Court may order that … (b) a step in the proceeding be taken within the time limited in the order; or (c) if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.”

4. The applicant has not appeared today. Ms Allen on behalf of the first respondent has asked that the matter be dismissed pursuant to the provisions of r. 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the non-appearance of the applicant. The court accedes to that order but also orders that the application be dismissed, additionally, pursuant to the provisions of r. 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) by reason of the default on the part of the applicant in failing to comply with Order 1 of the orders of Registrar Carlton made on 8 February 2021.

5. The applicant has given no reasonable excuse for failing to comply with the order of Registrar Carlton at any time between the making of that order and today. 

6. The court will hear the first respondent on the question of costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       9 March 2021