Albrecht v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 331
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Albrecht v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 331
File number: MLG 1997 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 5 May 2022 Catchwords: MIGRATION – Regional Employer Nomination 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: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 5 May 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1997 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALICIA ALBRECHT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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 $7,467.
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 before the Court for a directions hearing and a final hearing at 10.00am on 5 May 2022. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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 $7,467.
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.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 9 August 2021 (the “application”). The application was accompanied by an affidavit that was affirmed and filed by the applicant on 9 August 2021.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 22 July 2021.
On 8 November 2021, orders were made by Registrar van der Westhuizen transferring the matter to the Perth Registry of the Court.
On 16 December 2021, further orders were made by Registrar van der Westhuizen in this Court programming the matter to a final hearing before me at 10.00am on 5 May 2022.
On 26 April 2022, the applicant contacted the Perth Registry to advise that she was “experiencing COVID symptoms”. She requested a postponement of the hearing. A response was sent to the applicant by the Perth Registry advising that she would need to provide evidence (by way of affidavit) in support of any adjournment request.
Later that day (on 26 April 2022), the applicant responded to the Perth Registry advising that she was unable to provide an affidavit and stating that if she could not “understand what to do next week [she would] go to court on 5 May” (as she would have been isolating for two weeks by the time the hearing was to occur).
The applicant also forwarded a copy of this email to my Chambers. In response, my Chambers wrote to the applicant and advised her that she needed to provide a medical certificate or some medical evidence if she was, in fact, seeking an adjournment. My Chambers also explained that the applicant did not need to attend in person. Rather, she could attend the hearing via video link. This has been my Chamber’s standard approach throughout the COVID pandemic.
On 28 and 29 April 2022, the applicant sent another email to my Chambers advising that she would not “be participating or coming to the hearing” scheduled for 5 May 2022.
On 29 April 2022, my Chambers responded to the applicant as follows:
We refer to the attached email correspondence from you.
His Honour Judge Kendall is not unsympathetic to the concerns you have raised. Unfortunately, there are processes in this Court that must be followed. As His Honour understands it, you appear to be requesting that the matter be adjourned on medical grounds. Any adjournment request needs to be done by application to the Court and should include medical evidence supporting the request for an adjournment. To request an adjournment, you need to file “an application in a proceeding”. The forms you need to complete can be found at: General federal law forms | Federal Circuit and Family Court of Australia (fcfcoa.gov.au). You can also contact the Court’s registry for assistance in this regard using the following email address: [email protected].
His Honour Judge Kendall has also determined that it is preferable for the matter to be listed for a directions hearing followed by a final hearing (if deemed appropriate) on Thursday, 5 May 2022 at 12.00pm (AEST) / 10.00am (AWST). The purpose of the directions hearing is to allow His Honour to have a conversation with the parties about your request for an adjournment. Should His Honour determine that the matter cannot or should not proceed to a final hearing, the hearing will be vacated and the matter re-listed for a final hearing at a later date. If His Honour determines that that the matter can proceed to a final hearing, the matter will be heard immediately following the directions hearing.
I confirm that the directions hearing (and final hearing, if appropriate) will proceed via Microsoft Teams. This means that you are not required to attend the Court in person. Rather, you can appear via video link.
That email correspondence also provided the relevant link for the applicant to appear at the hearing via Microsoft Teams, provided instructions for using Microsoft Teams and explained how to attend the hearing electronically.
On 2 May 2022, the applicant responded to that correspondence. In effect, that email advised that the applicant:
(a)appreciated the court’s correspondence;
(b)did not have COVID. Rather, she had another medical condition which was exacerbated by stress;
(c)could not provide a medical certificate in this regard;
(d)believed the hearing should continue; and
(e)would not attend the hearing but would accept whatever outcome resulted.
On 5 May 2022, the matter was called for a final hearing. Mr Barrington (of counsel) appeared for the first respondent (the “Minister”). Unfortunately, there was no appearance by or for the applicant.
The correspondence outlined above was tendered and referenced as Exhibit 1.
The Court asked Mr Barrington how the Minister wished to proceed in the circumstances.
Mr Barrington advised that the Minister sought for the application to 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $7,467.
Noting the correspondence outlined above, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what she needed to do to participate in that hearing. She had simply chosen not to attend. The Court was also of the view that the costs sought by the Minister were appropriate in the circumstances of this case – the Court noting, in particular, the preparation required in drafting the Minister’s written submissions and the work required by counsel in preparation for the final hearing.
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.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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