Asv21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1028
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASV21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1028
File number: MLG 511 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 9 November 2023 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: 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)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 9 November 2023 Place: Perth Applicants: No appearance by or on behalf of the applicants Counsel for the First Respondent: Ms A Meaney Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 511 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASV21
First Applicant
ASW21
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
9 NOVEMBER 2023
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 applicants pay the first respondent’s costs, fixed in the sum of $3,930.
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 hearing of an application for an extension of time at 3.30pm (AEDT) / 12.30pm on 9 November 2023. When the matter was called, there was no appearance by or on behalf of the applicants.
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 applicants pay the first respondent’s costs, fixed in the sum of $3,930.
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 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 filed in the Melbourne Registry of this Court on 24 March 2021 (the “application”). That application was accompanied by an affidavit which was sworn by the applicants on 17 March 2021 (and filed in this Court on 24 March 2021).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 20 January 2021. 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 24 February 2021). The application filed by the applicants in this matter was filed 28 days outside of the requisite time period.
On 15 September 2021, orders were made by Registrar Carney of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 13 October 2023, orders were made by the Court amending those orders.
On 16 October 2023, 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 3.30pm (AEDT) / 12.30pm on 9 November 2023.
On 3 November 2023, the parties were reminded of the date and time of the hearing. They were also provided instructions in relation to how they could attend that hearing by video link (using Microsoft Teams).
As outlined above, when the matter came before this Court (on 9 November 2023), there was no appearance by or on behalf of the applicants. Ms Alana Meaney (“Ms Meaney”) appeared at the extension of time hearing on behalf of the first respondent (the “Minister”) (by video link).
The Court asked Ms Meaney how the Minister wished to proceed in the circumstances.
Ms Meaney 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 $3,930.
In support of that request, Ms Meaney sought to rely on the affidavit of service of Ms Michelle Anne Harradine (affirmed and filed on 8 November 2023 (the “Harradine affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicants and put the applicants on notice that, should they not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
Correspondence from my chambers to the parties (as set out above) was tendered and referenced as Exhibit 1.
The Harradine affidavit was taken as read and in evidence at the hearing.
Noting the correspondence contained in Exhibit 1 and the Harradine affidavit, the Court was satisfied that the applicants had been properly notified of the hearing date and time. They were also advised of how he could appear at that hearing.
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 Meaney 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 applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 November 2023
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