AUO22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 111
Federal Circuit and Family Court of Australia
(DIVISION 2)
AUO22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 111
File number: PEG 27 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 February 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicants – application dismissed 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). Legislation: 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: 19 Date of hearing: 9 February 2023 Place: Perth Applicants: No appearance by or for the applicants Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 27 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUO22
First Applicant
AUP22
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 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The substantive application filed by the applicants on 24 February 2022 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 applicants pay the first respondent’s costs fixed in the sum of $2,500.
3.Written reasons for judgment in relation to the substantive application 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 10.00am on 9 February 2023. When the matter was called, there was no appearance by or for the applicants.
In the circumstances, the Court made the following orders:
1.The substantive application filed by the applicants on 24 February 2022 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 applicants pay the first respondent’s costs fixed in the sum of $2,500.
3.Written reasons for judgment in relation to the substantive application to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 Perth Registry of this Court on 24 February 2022 (the “application”). That application was accompanied by an affidavit which was sworn by the first applicant on 23 February 2022 (and filed in this Court on 24 February 2022).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal on 24 January 2022.
On 28 April 2022, orders were made by Registrar Carney in this Court programming the matter to a final hearing “on a date to be advised”.
On 15 May 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing at 10.00am on 9 February 2023.
On 4 February 2023, the parties were reminded of the date, time and location of the hearing by my chambers. They were also provided instructions for an “in person” attendance at the Court.
As outlined by this Court in AUO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 110 (“AUO22”), the applicants sought an adjournment on medical grounds. An interlocutory hearing in that regard was dismissed for non-appearance pursuant to r 13.06(1)(d) of the Rules.
Correspondence from my chambers (as set out in AUO22) was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before this Court (on 9 February 2023) for a hearing of the substantive application, there was no appearance by or for the applicants. Ms Madisen Scott (“Ms Scott”) appeared at the hearing on behalf of the Minister.
The affidavit of service of Ms Scott (affirmed and filed on 30 January 2023) (the “Scott affidavit”) was taken as read and in evidence.
Ms Scott took the Court through correspondence set out in Exhibit 1 and the Scott affidavit.
The Court asked Ms Scott how the Minister wished to proceed in the circumstances.
Ms Scott 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 $2,500.
Noting the correspondence contained in Exhibit 1 and the Scott affidavit, the Court was satisfied that the applicants had been properly notified of the hearing date, time and how they 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 Scott was prepared to make oral submissions as required by the Court.
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: 23 February 2023
0
1
0