Athaullah v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 519
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Athaullah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 519
File number: PEG 229 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 27 June 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
Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 27 June 2022 Place: Perth Applicant: Did not participate Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 229 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED HUSNI ATHAULLAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
27 JUNE 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 this Court for a final hearing at 12.00pm (AWST) on 27 June 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 29 October 2021 (the “application”). The application was accompanied by an affidavit, sworn and filed by the applicant on 29 October 2021.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks judicial review of a confirmation decision made by the Administrative Appeals Tribunal on 6 October 2021.
On 2 December 2021, orders were made by Registrar van der Westhuizen programming the matter to a show cause hearing on a date to be fixed.
On 22 December 2021, following attendance by the parties at a directions hearing, orders were made which vacated the requirement for a show cause hearing and listed the matter for a final hearing at 10.00am (AWST) on 30 May 2022.
On 23 May 2022, my chambers notified the parties that the hearing scheduled to take place on 30 May 2022 had been vacated and that the matter had been re-listed for hearing at 12.00pm (AWST) on 27 June 2022.
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 by video link using Microsoft Teams.
On 27 June 2022, the matter was called for a final hearing. Ms Ellis appeared for the first respondent (the “Minister”). 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.
The correspondence detailed by Ms Ellis, together with the other correspondence from 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 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 $6,500.
Noting the correspondence tendered as Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing. The applicant was also aware that if he did not appear at the hearing, 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. The Minister’s written submissions were detailed and a solicitor had been briefed and was prepared to make oral submissions as required.
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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 June 2022
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