ADC22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 646
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 646
File number: MLG 50 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 21 July 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – 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). 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) and Division 1 of Part 2 in Schedule 2
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 21 July 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 50 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADC22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application be 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).
3.The applicant pay the first respondent’s costs, fixed in the sum of $2,000.
4.Written reasons for judgment to 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 for a final hearing before the Court at 11.00am on 21 July 2023. When the matter was called, there was no appearance by or for 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, Citizenship and Multicultural Affairs”.
2.The application be 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).
3. The applicant pay the first respondent’s costs, fixed in the sum of $2,000.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 Melbourne Registry of this Court on 4 January 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 3 January 2022 (and filed in this Court on 5 January 2022).
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 (the “Tribunal”) on 10 December 2021. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 20 April 2022, orders were made by a Registrar of this Court programming the matter to a final hearing on a date to be advised.
On 15 June 2022, a further order was made by that Registrar transferring the proceeding to the Perth Registry.
On 8 July 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing before this Court at 11.00am on 20 March 2023.
On 8 March 2022, my chambers notified the parties that the hearing outlined above had been vacated and had been re-listed to 21 July 2023 at 11.00am.
On 14 July 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court.
When the matter came before the Court (on 21 July 2023), there was no appearance by or for the applicant. Ms Scott appeared at the hearing on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear.
The Court asked Ms Scott how the Minister wished to proceed.
Ms Scott advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules. Ms Scott also sought the Minister’s costs, fixed in the sum of $2,000.
In support of that position, Ms Scott sought to rely on an email (with attachments) that she had sent through to my chambers on 20 July 2023. Attached to Ms Scott’s correspondence was an email from Ms Scott to the applicant dated 14 July 2023 in which Ms Scott stated:
Dear Mr [Applicant]
Please find attached an affidavit of service filed in this matter today.
We confirm that the hearing is listed for 11:00AM on Friday, 21 July 2023.
Please note, if you fail to attend the hearing, the Minister may seek that your application be dismissed for non-appearance, with costs.
Ms Scott also relied on the affidavit of service of Madisen Anne Scott affirmed and filed on 14 July 2023 (the “Scott affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should the applicant not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs.
The Scott affidavit was taken as read and in evidence.
Correspondence from Ms Scott (outlined above) was tendered and referenced as Exhibit 1.
Correspondence from my chambers to the parties (also set out above) was tendered and referenced as Exhibit 2.
Noting the correspondence contained in the Scott affidavit and Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also properly advised of how he could appear at that hearing.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Scott was prepared to make oral submissions as required by the Court. The Court also notes that the amount sought was well below the amount the Minister was entitled to under the Court’s set scale (set out in Division 1 of Part 2 in Schedule 2 of the Rules).
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 notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 August 2023
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