AAI24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1003
•7 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAI24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1003
File number: PEG 4 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 7 October 2024 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for a hearing of the interlocutory application for an adjournment – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(d) Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 7 October 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms A Ismailjee Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 4 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAI24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
7 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The request from the applicant made via email on 7 October 2024 for an adjournment of the final hearing in this matter is taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) is dispensed with.
3.The interlocutory application for an adjournment made by the applicant on 7 October 2024 is dismissed pursuant to r 13.06(1)(d) of the Rules.
4.There be no order as to costs.
5.Written reasons for judgment in relation to the interlocutory application for an adjournment will be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This interlocutory application (adjournment request) was listed before the Court at 11.00am on 7 October 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The request from the applicant made via email on 7 October 2024 for an adjournment of the final hearing in this matter is taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) is dispensed with.
3.The interlocutory application for an adjournment made by the applicant on 7 October 2024 is dismissed pursuant to r 13.06(1)(d) of the Rules.
4.There be no order as to costs.
5.Written reasons for judgment in relation to the interlocutory application for an adjournment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the interlocutory application for an adjournment for non-appearance.
BACKGROUND
This matter was listed for a final hearing of the applicant’s substantive application on 7 October 2024 at 11.00am. The parties were notified of that listing by my chambers (via email) on 6 March 2024.
On 5 October 2024, the parties were reminded of the date, time and location of the hearing by my chambers. They were also provided instructions for an “in person” attendance at the Court.
Later that same day (on 5 October 2024), the applicant wrote to the Court via email stating (without alteration):
Thank you for your email
I understand that I’m supposed to attend the hearing on the 7/10/2024 however I’m proceeding with another substantive visa subclass 491 which my agent and representative Mr Sam will be processing.
I hereby request the court to take note of my application and allow me to proceed with the next application and continue my new application whilst I withdraw the current review application.
I hope you will give special consideration to this case and help me in this situation.
On 7 October 2024 (at 9.30am), my chambers responded to the applicant as follows:
Chambers confirms receipt of your email correspondence below.
It is unclear to the Court what, precisely, you are seeking.
In the event that you seek to discontinue your application, His Honour Judge Kendall will discuss this with you at the hearing today (listed at 11.00am).
For the avoidance of confusion, Chambers confirms that the matter remains listed for hearing today at 11.00am and you are required to attend that hearing.
In the event that you do not appear at the hearing today, the Court may dismiss your application for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Later that same day (on 7 October 2024, at 9.49am), Mr Sam Levi (“Mr Levi”), the applicant’s migration agent, contacted the Court via email and stated as follows (without alteration):
Greetings.
I’m Sam, [the applicant’s]’s migration advisor.
To clarify her status I would like to advise your self that she in midst of applying for visa subclass 491 and is waiting further results.
I would appreciate if her hearing can be postponed as we have requested withdrawal of review.
With respect, the correspondence received from Mr Levi was also not clear. Importantly, Mr Levi references both a postponement of the hearing and a withdrawal of the review.
Mr Levi does not claim to be a “qualified legal practitioner” and is not on the Court record as acting for the applicant in this matter.
In the circumstances, my chambers responded to Mr Levi (with the correspondence copied to the applicant) at 10.16am on 7 October 2024, as follows:
Dear Mr Levi
Chambers confirms receipt of your email correspondence below.
It remains unclear whether your client seeks to adjourn the hearing or withdraw her application for judicial review filed in this Court.
Given the close proximity to the hearing, His Honour considers it would be best to have the applicant appear at the hearing today to discuss her wishes with the Court.
The Court notes that if the applicant is seeking an adjournment, the proper course of action is to file a formal application in a proceeding (with a supporting affidavit and appropriate evidence). The applicant has not done so. His Honour is prepared to accept email correspondence as a request for an adjournment (if that is in fact what the applicant is seeking) but such an application still needs to be heard and determined by the Court. In the event that an adjournment is sought, His Honour will consider that request at the hearing listed at 11.00am today. In the event that the adjournment request is not granted, the applicant should be prepared to proceed to a final hearing today.
In the event that the applicant does not appear at today’s hearing (listed at 11.00am), the Minister may seek to have the application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
As you do not appear to be a legal practitioner, and are not on the Court record as a solicitor acting for the applicant in relation to this matter, you are not able to appear on the applicant’s behalf at today’s hearing. However, if you wish to attend the hearing as a support person for the applicant, His Honour will grant you leave to do so.
At 10.41am on 7 October 2024, the applicant sent an email to my chambers as follows:
Thank you for your email.
I am hereby requesting to adjourn the hearing to later date.
Thank you
At 10.52am (also on 7 October 2024), my chambers responded to the applicant as follows:
Dear Madam Applicant
Chambers confirms receipt of your email.
The Court is sympathetic to the concerns raised by you. However, given the lateness of your request, His Honour still requires that you attend the hearing to discuss your adjournment request. In the event that the adjournment request is not granted, the matter will proceed to a final hearing today.
His Honour will allow you to appear via video link using Microsoft Teams. Instructions in that regard are set out below.
…
In the event that you do not appear at today’s hearing of the interlocutory application for an adjournment (and the substantive hearing, if deemed appropriate, both now listed at 11.00am), either in person or via video link, the Minister may seek to have both applications dismissed for non-appearance and may seek a costs order against you.
The applicant was also provided instructions on how she could appear at the hearing via video link.
At 11.13am (13 minutes after the hearing was scheduled to commence), Mr Levi contacted my chambers again (via email) advising as follows (without alteration):
Thanks for your email
We would like to advise you that My client is unable to attend todays hearing as she is medically unfit.
I would request you kind self to accept our request and provide us with a later date
Your kind acceptance will be highly appreciated.
Given the late communications and conflicting information being provided to chambers, the Court deemed it appropriate to stand the matter down until 11.45am to allow the applicant an opportunity to attend the hearing – either in person or via video or phone link.
At 11.24am, my chambers responded to Mr Levi via email (with the applicant copied in on the correspondence) as follows:
Dear Mr Levi
Thank you for email correspondence.
The Court has contacted the applicant directly, noting that you are not on the Court record as her legal representative in this matter.
The applicant has requested an adjournment. No medical evidence has been provided by the applicant advising of any medical incapacity.
The applicant was listed for hearing at 11.00am today. The applicant has not attended (either in person or via video link). The Court has now held over the matter until 11.45am.
The applicant was also provided with information to allow her to appear via video link at the hearing.
Without further information or evidence from the applicant, the Court will proceed to hear the application for an adjournment request and, if the adjournment request is refused, the substantive hearing at 11.45am today.
The matter proceeded at 11.48am. Ms Aatika Ismailjee (“Ms Ismailjee”) from Sparke Helmore appeared on behalf of the first respondent (the “Minister”).
The matter was called three times (on 1 October 2024) but there was still no appearance by or on behalf of the applicant.
Before the Court could ask Ms Ismailjee how she wished to proceed in the circumstances, at 11.50am, further correspondence was sent to my chambers by the applicant, which was read into court and provided to Ms Ismailjee.
That correspondence read as follows:
Thank you for your email.
I am unable to attend in person or via video link for today's hearing due to a number of issues. Therefore I request to change the hearing date. I understand this is a last minute request, but I seek your understanding and consideration. If you are unable to change the date then please proceed with the withdrawal
Thank you so much
The Court indicated that it was prepared to accept the applicant’s email correspondence as an interlocutory request for an adjournment and was prepared to proceed on that basis.
Ms Ismailjee advised the Court that the Minister opposed the adjournment request. Further, noting that the applicant had not attended, Ms Ismailjee told the Court that the Minister was agreeable to the adjournment application being dismissed pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Ultimately, the Court did not need to determine whether the applicant should be granted an adjournment as the applicant did not appear – despite both she and her migration agent being advised that she was still required to do so.
Correspondence from the applicant and Mr Levi to the Court (including responses from my chambers) as outlined above and in relation to the adjournment request was tendered and referenced as Exhibit 1.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the interlocutory hearing in relation to the adjournment request and how she could appear at that hearing (either in person or via video link).
CONCLUSION
In the circumstances, the Court made orders to dismiss the interlocutory application for an adjournment for non-appearance, as outlined at [2] above.
There was no order as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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