AGD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 599
•27 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 599
File number(s): MLG 102 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 27 July 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal - citizen of Egypt– refusal of Protection (Class XA) Subclass 866 visa
PRACTICE AND PROCEDURE – where no appearance by applicant – where applicant has not advised of change to contact details – where applicant has not previously appeared at directions hearing programming matter for hearing – where applicant has been advised by email and post of final hearing – where calls to applicant unsuccessful
Legislation: Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06 Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 Division: Division 2 General Federal Law Number of paragraphs: 5 Date of hearing: 27 July 2022 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Ms M Stone via CISCO Webex Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 102 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 JULY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 16 January 2017 be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The Applicant pay the First Respondent’s costs in the sum of $6,000 by 27 August 2022.
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
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
AGD17 made an application for judicial review, filed in the Melbourne Registry of this Court on 16 January 2017. There was a first Court date on 19 July 2017, in which orders were made listing the matter for final hearing before a Judge in the Melbourne Registry of the Court on a date to be advised. On 11 April 2018, the matter was listed for hearing before Judge Kirton in Melbourne on 3 December 2019. On 9 July 2019, the Chambers of Judge Kirton advised the parties that the hearing on 3 December 2019 had been vacated and the matter would be adjourned to a date to be fixed. Nothing further happened until November 2021 when the matter was allocated to the Perth Registry of the Court for hearing by a Perth-based Judge of the Court. It is well known that there are delays in the hearing of judicial review applications in the Melbourne Registry of the Court: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren.
On 5 November 2021, the parties were advised that the matter had been listed for directions before the Court as presently constituted on 19 November 2021. All of the above notifications were sent to AGD17 at an email address, as set out in the originating application as the AGD17’s email address for service. On 8 November 2021, the email sent to the parties, including to AGD17 at his email address, advising of the notice of listing was returned to the Court with an indication that it could not be delivered due to a policy violation or system error with AGD17’s email address. Later on 8 November 2021, AGD17 was sent a letter to the street address listed in the originating application, in Albanvale in Victoria. On 22 November 2021, that letter was returned to the Court marked “return to sender”. AGD17 has not filed any alternative address for service since filing the originating application.
AGD17 did not appear at the directions hearing on 19 November 2021. At the directions hearing on 19 November 2021, orders were made (“Court’s Orders”) listing the matter for hearing today, but also for various documents to be filed by AGD17, including any amended application, any affidavits, a supplementary Court book if any, and written submissions. There was also a note to the Court’s Orders, noting that if there was no appearance by AGD17 at the hearing today, the matter may be dismissed for non-appearance. The Court’s Orders were sent by email to AGD17’s email address, and also mailed to the Albanvale address.
On 19 July 2021, confirmation of listing details and directions with respect to video link attendance at today’s hearing were sent to the parties, and in the case of AGD17, to his email address and also by mail to the Albanvale address. That process was repeated as recently as yesterday. The Court notes that there is no evidence of any contact by AGD17 with the Court and no appearance by AGD17 today. There is no appearance today in circumstances where there is no evidence that AGD17 has intended to dial in to the videolink in accordance with the instructions sent to him, and where the presiding Judge’s Associate has endeavoured to contact him on the mobile telephone number which appears on the originating application, and where that contact results in a message saying that the mobile telephone number is not answering.
Thus, in circumstances where all relevant documents and orders have been served on the AGD17 at the address for service provided in the originating application, where no other notice of address of service has been notified by AGD17, and where the Court’s Orders specifically put AGD17 on notice of the possibility of an order for dismissal for non-appearance in the event that he did not appear at today’s hearing, the Court is satisfied that there should be an order for dismissal for non-appearance.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 July 2022
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