AAI24 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1004
•7 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAI24 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1004
File number: PEG 4 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 7 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Cases cited: AAI24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1003 Division: Division 2 General Federal Law Number of paragraphs: 20 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 substantive application filed by the applicant on 2 January 2024 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs, fixed in the sum of $5,859.80.
3.Written reasons for judgment in relation to the substantive application 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 matter was listed before the Court for a final hearing at 11.00am on 1 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 substantive application filed by the applicant on 2 January 2024 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs, fixed in the sum of $5,859.80.
3.Written reasons for judgment in relation to the substantive application will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 above. They explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”).
BACKGROUND
Before the Court is an application for judicial review filed in the Perth Registry of this Court on 2 January 2024 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 22 December 2023 (and filed in this Court on 2 January 2024).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal on 6 December 2023.
On 7 February 2024, orders were made by Registrar Downing in this Court programming the matter to a “final hearing on a date to be advised”.
On 6 March 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing at 11.00am on 1 October 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.
As outlined by this Court in AAI24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1003 (“AAI24”), the applicant appeared to seek to either withdraw her application or have the hearing adjourned. An interlocutory hearing in that regard was dismissed for non-appearance pursuant to r 13.06(1)(d) of the Rules.
Correspondence from the applicant and her migration agent requesting an adjournment and the responses from my chambers (as set out in AAI24) was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before this Court (on 1 October 2024) for a hearing of the substantive application, there was no appearance by or on behalf of the applicant. Ms Aatika Ismailjee (“Ms Ismailjee”) appeared at that hearing on behalf of the first respondent (the “Minister”).
Correspondence from my chambers to the parties in relation to the listing and hearing arrangements was tendered and referenced as Exhibit 2.
The affidavit of service of Mr Benjamin Mayne (affirmed on 3 October 2024 and filed on 4 October 2024 (the “Mayne affidavit”)) was taken as read and in evidence.
The Court asked Ms Ismailjee how the Minister wished to proceed in the circumstances.
Ms Ismailjee advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and requested costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibits 1 and 2 and the Mayne affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date, time and how she could appear at that hearing.
Noting that the applicant in this matter was not entirely clear about how she wished to proceed and noting that a dismissal for non-appearance pursuant to r 13.06(1)(c) of the Rules allows an applicant to seek reinstatement (which is not the case if a matter is discontinued), the Court proceeded to dismiss the application for non-appearance.
In relation to the costs order sought by the Minister, the Court determined that it would be more appropriate to issue costs in the (lower) scale amount for a discontinuance (noting that the applicant’s last correspondence to the Court arguably sought to “withdraw” her judicial review application, in the event that a later hearing date could not be provided) and did so.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court also notes that the applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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