Agbasi v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1253

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Agbasi v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1253

File number(s):	MLG 1488 of 2020
Judgment of:	JUDGE CUTHBERTSON
Date of judgment:	7 November 2024
Catchwords:	MIGRATION – Application for judicial review – matter listed for final hearing – applicant’s solicitor unable to locate the applicant to obtain instructions – whether the applicant has failed to prosecute the proceedings with due diligence – application dismissed pursuant to r 13.05(1)(a) 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), rr 9.03, 13.04(1)(e), 13.05(1)(a)
Division:	Division 2 General Federal Law
Number of paragraphs:	26
Date of last submission/s:	7 November 2024
Date of hearing:	30 October 2024, 7 November 2024
Place:	Melbourne
Counsel for the Applicant:	Mr N. Godson
Solicitor for the Applicant:	Goz Chambers Lawyers
Counsel for the First Respondent:	Mr J. Macaulay
Solicitor for the First Respondent:	Clayton Utz
Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 1488 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ONYEBUCHI MERCELLINUS AGBASI

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CUTHBERTSON
DATE OF ORDER:	7 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be amended to “Administrative Review Tribunal”.

3.The application filed on 7 May 2020 is dismissed pursuant to rr 13.04(1)(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

4.The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $7,975.00.

AND THE COURT NOTES THAT:

A.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
(revised from transcript)

JUDGE CUTHBERTSON

INTRODUCTION

1. This matter was listed for final hearing before the Court on 30 October 2024 at 10:15am. On 30 October 2024, I adjourned the matter to 7 November 2024 for mention to enable the applicant’s uncle to attempt to contact the applicant.

2. This matter was listed for mention before the court at 10:00am on 7 November 2024. When the matter commenced, the applicant’s solicitor appeared on behalf of the applicant. They advised they were unable to locate the applicant. The first respondent’s representative sought dismissal of the application on the basis the applicant was in default by failing to prosecute the proceeding with due diligence.

3. In the circumstances, the Court made the following orders:

   1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

   2. The name of the second respondent be amended to “Administrative Review Tribunal”.

   3. The application filed on 7 May 2020 is dismissed pursuant to rr 13.04(1)(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

   4. The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $7,975.00.

4. These reasons explain why the Court dismissed the matter pursuant to rr 13.04(1)(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules).

   BACKGROUND

5. The applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) on 7 May 2020 seeking judicial review of a decision of the Administrative Appeals Tribunal made on 14 April 2020 (application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Act. The applicant has been represented in these proceedings by Goz Chambers Lawyers at all times.

6. On 12 August 2020, procedural orders were made by a registrar of this Court to ready the matter for hearing, including setting a timetable for the filing of the court book and written submissions of the parties. On 7 October 2020, the first respondent duly filed a court book in relation to the matter in accordance with that timetable. On 4 September 2024, a notice was sent to the parties via their legal representatives advising the matter was listed for final hearing before me on 30 October 2024 at 10.15 am. A further notice amending a typographical error in the earlier notice was sent to the parties on 6 September 2024.

7. On 14 October 2024, the solicitors for the applicant emailed the Court advising they had not been able to comply with the timetabling orders made on 12 August 2020 as they had been unable to locate the applicant. The email explained the applicant's housemate had advised the applicant was travelling interstate and has not returned or taken his calls since then. The email advised that this contact had been received on 15 August 2024. The applicant's solicitors advised they had not been able to confirm the applicant's instructions to proceed with the hearing. The email also advised the parties had agreed to adjourn the hearing to another date to enable the applicant's solicitors to locate him. There was a proposed memorandum of consent orders attached to the email consistent with that agreement.

8. I was not minded to adjourn the matter in the circumstances. The parties were advised that if the applicant's solicitors heard from the applicant in the meantime, they could let the Court know if they still needed amendments to the procedural orders or an adjournment, the reasons for it and the time required.

9. On 24 October 2024, my chambers emailed the parties requesting they arrange for a transcript or audio recording of the Tribunal proceedings to be provided to the Court, given there were allegations in the judicial review application concerning the conduct of those proceedings. An audio recording of the hearing was provided by the Minister on 28 October 2024.

   30 October 2024

10. The matter came before me on 30 October 2024 for final hearing. The applicant's solicitor appeared, as did the Minister's legal representatives. Although the Minister had filed written submissions in respect of the judicial review application, the applicant had not done so. I note there was a requirement pursuant to the procedural orders made by the registrar of this Court on 12 August 2020 that written submissions be filed by the parties prior to the final hearing of the matter. The applicant's solicitor sought an adjournment of the matter for a period of three months. He had not been able to contact the applicant by telephone. He told me the applicant's phone was not even ringing.

11. The applicant’s solicitor advised the Court he had personally attended the address of the applicant's uncle with whom the applicant had previously lived in an attempt to locate the applicant. The applicant’s uncle advised him the applicant does not live in Melbourne and that he and the applicant had fallen out. The applicant's uncle, however, told Mr Godson he would spend time on the following weekend attempting to locate the applicant by contacting one of his closest friends. Mr Godson also advised the Court he had not had contact with the applicant for some time, though he recalls the applicant attended his office to sign an application for police clearance relevant to applicant’s work as a security guard. Mr Godson submitted the application for judicial review had merit.

12. The Minister opposed the application for an adjournment. The Minister had previously agreed to the adjournment and proposed consent orders in the context of the applicant's solicitors indicating they were attempting to make contact but were unable to meet the procedural deadlines. The Minister's assent was given on that occasion because there was at least a prospect that contact would be made, and the Minister was concerned that the opportunity to put on their submissions was not prejudiced.

13. The Minister opposed the adjournment sought when the matter was before me on 30 October as the Minister had then filed written submissions and was ready to deal with the application.  Further, the Minister submitted there was no evidence of the attempts to make contact with the applicant or of how he may be contacted in the future. I note that the information that was before the Court was provided from the bar table by Mr Godson.

14. The Minister submitted the Court and the Minister were left in a position that there was no certainty or reasonable prospect of the applicant being contacted in the future. Against that background, the Minister made an application that the application be dismissed as the applicant's solicitor was not in a position to proceed and had not provided his solicitor with instructions. The Minister sought costs fixed in the sum of $7,975.00.

15. On 30 October 2024, I ordered the matter be adjourned for a further short period to enable the applicant's uncle to attempt to contact the applicant. The matter was listed again before me on 7 November 2024 for mention. Mr Godson again appeared for the applicant and Mr Macaulay appeared for the Minister. Mr Godson advised the Court that the applicant's uncle attended his office and advised he had managed to locate the applicant's employers. They advised the applicant had left two weeks previously, and I infer they had no contact details for the applicant. Mr Godson advised he was considering contacting the police. He renewed his application for an adjournment, though acknowledged he was without instructions.

16. The Minister opposed a further adjournment. It was submitted there was a real question whether any further adjournment would have utility in the circumstances outlined by Mr Godson. The Minister renewed the application for dismissal of the proceedings pursuant to rr 13.04(1)(e) and 13.05(1) of the Rules on the basis that the applicant was in default by failing to prosecute the proceeding with due diligence.

17. I therefore have two applications before me, the first for an adjournment and the second for the dismissal of the proceedings. I have decided it is not appropriate to adjourn the proceedings further. I agree with the Minister's submissions that there appears to be no practical utility in doing so, given that Mr Godson has had no success in the period since the initial notice was sent advising of the hearing and today's date which is a period of some two months now. Further, Mr Godson and the other people that one would expect to have contact details for the applicant do not have those contact details. In my view it is just not practical or feasible to expect that there would be anything achieved by an adjournment.

18. I have also determined that the proceedings should be dismissed.

19. First, I am satisfied the applicant has failed to prosecute the proceedings with due diligence. He has failed to maintain contact with his solicitor. His solicitor has been unable to confirm whether he wishes to continue to prosecute his application or not. The applicant's solicitor remains the lawyer on the record until such time as the applicant serves a notice on them pursuant to r 9.01(2), or another solicitor acting on behalf of the applicant files a notice in accordance with r 9.02(2) of the Rules. Alternatively, the solicitor can withdraw in accordance with the process set out in r 9.03 of the Rules.

20. I note from discussions this morning, Mr Godson queried whether he was in a position to withdraw, but my reading of those rules suggests that there can be a withdrawal, or the relevant notice provided, as long as it is provided to the last known contact details. None of these steps has occurred. That consequently means that the applicant's solicitors remain the lawyers on the record. The failure of the applicant's solicitors to file submissions or prosecute the proceedings, as understandable as that may be in the circumstances is, within the meaning of the Rules, a failure of the applicant.

21. I am also satisfied that it is appropriate to dismiss the proceedings pursuant to r 13.05(1)(a) of the Rules. There is no information before the Court suggesting there is any reasonable prospect that a further adjournment or further orders will see the matter progress to final hearing. I am mindful that the application for judicial review was first filed on 7 May 2020 and that the Court has not been able to list the matter for final hearing for in excess of four years. Nevertheless, it is incumbent on an applicant to prosecute their application diligently. This includes by keeping in touch with their legal representatives or, if unrepresented, keeping the Court informed of their current contact details. The applicant has failed to keep his solicitors advised of his whereabouts.

22. Allowing the matter to remain on foot in circumstances where there appears to be no realistic prospect of the applicant being able to be located would not be consistent with the overarching purpose of the Rules, and I refer specifically to r 1.04(1) of the Rules.

    CONCLUSION

23. I order the proceedings be dismissed pursuant to rr 13.04(1)(e) and 13.05(1) of the Rules on the basis that the applicant is in default by failing to prosecute the proceeding with due diligence.

24. In the circumstances, it is my view that the costs of the application should follow the event.  The Minister has gone to the trouble of putting on written submissions and attending the Court in anticipation of the matter being ready for hearing.  In my view, it is appropriate that an order for costs be made in favour of the Minister, and I am also satisfied that the amount sought, namely $7,975.00, which is an amount that falls short of the scale of costs for matters finalised at final hearing, is an appropriate indemnity in the circumstances.

25. Just for the sake of completeness, I will also order that the name of the Minister be amended to the “Minister for Immigration and Multicultural Affairs”, consistent with the name change of the Minister that has occurred since the proceedings were filed.

26. And, finally, given the disbandment of the Administrative Appeals Tribunal and the operation of the transitional provisions which substitute the Administrative Review Tribunal as the proper party in relation to any proceedings commenced prior to the commencement of the new tribunal, I also amend the name of the second respondent to the “Administrative Review Tribunal”.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson.

Associate:

Dated:       7 November 2024