Ama22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1125
•28 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMA22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1125
File number(s): SYG 221 of 2022 Judgment of: JUDGE LAING Date of judgment: 28 November 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicant on the last occasion raised an issue as to whether he had been denied the requisite review by the Tribunal on account of misconduct by a migration agent – where the matter was adjourned to allow evidence to be provided – where no evidence was filed by the applicant and the applicant did not attend the resumed hearing – issues regarding address for service – application dismissed for non-appearance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05
Migration Act 1958 (Cth) s 477
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 28 November 2023 Place: Sydney Applicant: No appearance Solicitor for the First Respondent: Ms D Stone of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 221 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMA22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
28 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time 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).
2.The applicant pay first respondent’s costs.
3.The first respondent has leave to file and serve any material in support of his application for costs to be fixed in an amount above scale by 1 December 2023.
4.The applicant has leave to file and serve any material in reply by 13 December 2023.
5.If either party seeks for matter to be listed for further hearing in relation to the costs application, they notify my Associate of this by 13 December 2023.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING:
Before the Court is an application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed its decision to dismiss an application made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa.
The matter was originally listed before me for hearing in person on 29 September 2023. The applicant did not attend the hearing in person, although my Associate was able to contact him by telephone. The applicant informed the Court that he had arranged for an agent to undertake his application to the Court and that he had also engaged another agent before the Tribunal. The applicant stated that he was unable to name these individuals. The applicant indicated that the agent who had agreed to assist him before the Tribunal had not assisted him as had been agreed.
I explained to the applicant that I was unable to take what he had said in submissions into account as evidence. I explained that if he wished to rely upon what he said had happened with the migration agent, then it would need to be given as evidence under oath or affirmation. I observed that this may occur by affidavit, and that the Registry may be able to assist him with the process.
The applicant requested an opportunity to put such evidence before the Court. I therefore made orders giving the applicant leave to file and serve any further evidence and submissions by 27 October 2023. Leave was also granted permitting the Minister to file and serve any further evidence and submissions. The matter was listed for an adjourned hearing at 10:00 am on 28 November 2023.
The applicant was present in Court when these orders were made, which I understand were interpreted to him. I informed the applicant that if he did not attend Court on the next occasion, then he should not expect that he would be contacted by telephone. I informed the applicant that his application may be dismissed for non-appearance if he did not attend Court on the next occasion.
The applicant has not filed any evidence or other material in accordance with the orders made at the hearing on 29 September 2023. He has not filed any updated Notice of Address for Service form with the Registry. This is notwithstanding his indication at the hearing that he had changed his email address since filing his application with the Court, in response to which the applicant was informed that he would need to file a form with the Registry updating his address if he wished for communications to be sent to the new address. An email providing this form and instructions for how to contact the Registry was sent to the applicant on 29 September 2023 to both the email address for service provided with his application to the Court and to the new email address that I understand was communicated at the hearing.
The applicant has not attended the hearing today. Emails stating and updating the Courtroom location of the hearing were sent to the applicant at the address for service listed on his application form. As explained earlier, the applicant was informed both at hearing and by email of how to update his contact details if he wished to do so. He did not do so.
It may have been prudent for the listing details to have nonetheless also been sent to the email address provided at the hearing. I understand that this inadvertently did not occur. However, as I have noted, the applicant was on notice of the hearing from its communication to him on the last occasion. He did not provide updated contact details in the manner that he was told would be necessary after the hearing. It is not apparent that he has made any endeavour to attend the Court today, or to contact the Minister or the Court regarding any difficulty with doing so.
The Minister has tendered further correspondence with the applicant sent to both email addresses. This was sent by the Minister on 30 October 2023 and 31 October 2023. That correspondence reminded the applicant of the listing today and queried whether further material would be provided in support of the application. It appears that both emails sent to the most recent email address communicated by the applicant at hearing were undeliverable to that address, which does not appear to have remained a viable means of communication in any event. The correspondence indicates that an attempt was also made on behalf of the Minister to contact the applicant by telephone, however the person who answered claimed that they were not the applicant.
The matter has been called outside the Courtroom, both at this location and outside of the Courtroom at the level above where the hearing was originally listed. It is now 10.49 am and there has been no appearance for the applicant.
I have considered whether an attempt should be made to contact the applicant by telephone. I have not required this course to be pursued in circumstances where:
(a)the applicant was advised on the last occasion not to expect that he would be contacted by telephone if he did not attend the hearing today;
(b)the applicant was warned that if he did not attend, then his application may be dismissed for non-appearance;
(c)there has been a lack of engagement otherwise by the applicant in these proceedings;
(d)the issue raised by the applicant in these proceedings would require further evidence to be given in order to succeed, which may well be contested. I have concerns about the fairness to the Minister of allowing such evidence to be taken without notice by telephone; and
(e)there is some indication from the Minister’s evidence that the applicant’s telephone number is no longer a viable means of communication in any event.
In these circumstances, the Minister seeks dismissal of the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). I accept that this would be an appropriate course. If the applicant wishes to pursue his application before the Court, it would be open for him to apply for reinstatement pursuant to r 17.05 of the Rules. The Registry would be able to assist him with the filing of any such application. Without some meaningful step being taken by the applicant to progress his application before the Court, however, it seems to me that adjourning the hearing again in this matter would be unlikely to produce any useful result.
The Minister additionally seeks an order that the applicant pay his costs fixed in an amount above scale. However, no evidence was relied upon in support of the application and it is not apparent what attempts to provide notice of it to the applicant have been made. In these circumstances, I propose to set a timetable allowing the Minister to file and serve such material as he wishes to rely upon in support of the application and allowing the applicant an opportunity for response.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 28 November 2023
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