AQH24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1002
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQH24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1002
File number: PEG 47 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 11 September 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – no appearance by or on behalf of 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: Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 11 September 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 47 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQH24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Counsel for the first respondent 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 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 $5,900.
5.Written reasons for judgment will 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 hearing of an application for an extension of time at 11.30am on 11 September 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.Counsel for the first respondent 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 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 $5,900.
5. Written reasons for judgment will 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 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”).
BACKGROUND
Before the Court is an application for judicial review which was filed in the Perth Registry of this Court on 15 February 2024 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 22 January 2024 (and filed in this Court on 15 February 2024).
The application sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 14 November 2017. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 19 December 2017). The application in this matter was thus filed 2,249 days outside of that requisite time period.
On 29 May 2024, procedural orders were made by Registrar Downing of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 9 July 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time at 1.00pm on 10 September 2024.
On 8 September 2024, the parties were notified that, due to judicial unavailability, the hearing listed on 10 September 2024 had been vacated and the matter had been re-listed (for a hearing of the application for an extension of time) at 11.30am on 11 September 2024. They were also provided with instructions for an “in person” attendance at the Perth registry of the Court.
On 9 September 2024, Ms Elle Tattersall (“Ms Tattersall”) from Minter Ellison (solicitor for the first respondent (the “Minister”)) contacted my chambers to seek leave to appear at the re-listed hearing via video link.
Later that same day (on 9 September 2024) my chambers confirmed that Ms Tattersall would be granted leave to appear at the hearing via video link and relevant details were provided for Ms Tattersall to do so using Microsoft Teams.
On 10 September 2024, correspondence was sent to the applicant from the offices of Minter Ellison, notifying the applicant of the re-listed hearing date and putting him on notice that, should he not appear at the re-listed hearing (on 11 September 2024), the Minister may seek to have the matter dismissed for non-appearance and seek the Minister’s costs.
On 11 September 2024, Ms Tattersall sent a copy of that correspondence to my chambers.
As outlined above, when the matter came before this Court (on 11 September 2024), there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times. There was still no appearance by the applicant.
Ms Tattersall appeared at the extension of time hearing on behalf of the Minister (via video link).
An interpreter had also been made available to assist the applicant. Given the applicant’s absence, the assistance of the interpreter was ultimately not required.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had received email correspondence from Ms Tattersall attaching the correspondence from Minter Ellison to the applicant (dated 10 September 2024 and referenced above). That correspondence was tendered and referenced as Exhibit 2.
Finally, the Court confirmed that it had before it an affidavit of service of Ms Charlotte Elizabeth Saunders (affirmed on 4 September 2024 and filed on 5 September 2024 (the “Saunders affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Ms Tattersall how the Minister wished to proceed in the circumstances.
Ms Tattersall advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $5,900.
Noting the correspondence contained in Exhibits 1 and 2 and the Saunders affidavit, the Court was satisfied that the applicant had been notified of the hearing date and time. He was also advised of how he could appear at that hearing and the possible cost consequences of failing to attend.
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 Tattersall was prepared to make oral submissions, as required, in relation to the application for an extension of time.
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-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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