Apc22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 556
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
APC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 556
File number(s): PEG 26 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 1 July 2022 Catchwords: MIGRATION – Bridging E (Class WE) 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
Migration Act 1958 (Cth), ss 91X and 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 1 July 2022 Place: Perth The Applicant: No appearance Counsel for the First Respondent: Ms G Ellis The Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 26 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APC22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
1 JULY 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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs fixed in the sum of $6,500.
5.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 final hearing at 12.00pm on 1 July 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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs fixed in the sum of $6,500.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 Perth Registry of this Court on 3 December 2021 (the “application”). The application was accompanied by an affidavit which was deposed and filed by the applicant on 3 December 2021.
The application seeks review of a decision made by the Administrative Appeals Tribunal on 27 October 2021. As per s 477 of the Migration Act 1958 (Cth) (the “Act”), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 1 December 2021). The application filed by the applicant was thus filed 2 days outside of the requisite timeframe.
On 4 February 2022, orders were made by Registrar van der Westhuizen in this Court programming the matter to a hearing in relation to the applicant’s application for an extension of time and, if granted, a final hearing of the substantive application.
On 9 February 2022, my chambers notified the parties that the matter had been listed for a hearing on 3 June 2022 at 10.00am.
That same day (also on 9 February 2022), Ms Ellis (as solicitor for the first respondent (the “Minister”)) wrote to the Court’s National Migration Team, and advised that, in circumstances where the applicant had previously applied for a protection visa, the Minister considered it appropriate to assign the applicant a pseudonym pursuant to s 91X of the Act.
On 23 February 2022, this Court made orders, inter alia, assigning the applicant a pseudonym and assigning the matter a new proceeding number.
On 1 March 2022, the National Migration Team provided the parties with a copy of those orders and confirmed that the matter remained listed before this court for hearing. Unfortunately, there was a typographical error in that correspondence regarding the date of the hearing.
On 8 March 2022, my chambers notified the parties of that typographical error and confirmed that the matter was listed for hearing on 3 June 2022 at 10.00am.
On 23 May 2022, my chambers notified the parties that the hearing listed on 3 June 2022 had been vacated and that the matter had been re-listed for hearing on 1 July 2022 at 12.00pm.
On 24 June 2022, the parties were reminded by my chambers of the date, time and location of the hearing and were also provided with instructions for attendance at that hearing by video link using Microsoft Teams.
On 1 July 2022, the matter was called for a hearing of the extension of time application and the substantive matter. Ms Ellis appeared for the Minister at that hearing. Unfortunately, there was no appearance by or for the applicant.
Ms Ellis took the Court through correspondence from her office to the applicant serving various documents and advising the applicant that, in the event that he did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek the Minister’s costs.
That correspondence, together with the other correspondence from my chambers outlined above, was tendered and referenced as Exhibit 1.
The Court asked Ms Ellis how the Minister wished to proceed in the circumstances.
Ms Ellis advised that the Minister sought to have the matter 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 $6,500.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and advised of what he needed to do to participate in that hearing. The applicant was also aware that if he did not appear, the Minister would seek dismissal and a costs order.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Ellis had been briefed and prepared to make oral submissions as required in relation to both the application for the extension of time and the substantive application.
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: 18 July 2022
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