AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 639
•17 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 639
File number: MLG 563 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 17 July 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: 17 July 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms M Popal Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 563 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUW21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
17 JULY 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 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 applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
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 1.00pm (AWST) on 17 July 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 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 applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
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 which was originally filed in the Melbourne Registry of this Court on 26 March 2021 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 15 March 2021 (and filed in this Court on 26 March 2021).
The application sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 14 January 2021. As per s 477(1) 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 18 February 2021). The application in this matter was thus filed 36 days outside of that requisite time period.
On 27 February 2024, a directions hearing was held by Registrar Cummings of this Court. The applicant appeared at that directions hearing. Registrar Cummings made orders programming the matter to a “hearing of the application for an extension of time on a date to be advised”. He also made an order for the matter to “be transferred to the Perth Registry” of the Court, noting that the application was residing in Perth.
On 6 March 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 11.00am (AWST) on 28 May 2024.
Later that same day, Mr Joseph Wilczer (“Mr Wilczer”) (representative from HWL Ebsworth Lawyers, solicitors for the first respondent (the “Minister”)) contacted my chambers by email and sought leave for the Minister’s counsel to appear at the hearing via video link (noting that the Minister’s representatives in the matter were located in Melbourne – being the locating of the original filing of the application).
On 14 March 2024, my chambers confirmed that the Minister’s counsel would be granted leave to appear at the hearing via video link.
On 24 May 2024, the parties were notified that, due to judicial unavailability, the hearing listed on 28 May 2024 had been vacated and the matter had been re-listed (for a hearing of the application for an extension of time) at 1.00pm (AWST) on 17 July 2024).
On 27 May 2024, Ms Maryam Popal (“Ms Popal”) (representative from HWL Ebsworth Lawyers) wrote to my chambers to seek confirmation that the Minister’s counsel still had leave to appear at the re-listed hearing via video link.
Later that same day (being on 27 May 2024), my chambers confirmed to Ms Popal that the Minister’s counsel still had leave to appear via video link at the re-listed hearing.
On 16 July 2024, the parties were reminded of the date and time of the hearing. They were also provided with instructions for an “in person” attendance at the Perth registry of the Court (in relation to the applicant) and instructions in relation to how to appear via video link (in relation to the Minister’s counsel).
As outlined above, when the matter came before this Court (on 17 July 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 no appearance by the applicant.
Ms Popal appeared at the extension of time hearing on behalf of the Minister (via video link).
An interpreter was also made available in the court room 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 before it an affidavit of service of Ms Popal (affirmed and filed on 20 May 2024 (the “Popal affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put her on notice that, should she not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Ms Popal how the Minister wished to proceed in the circumstances.
Ms Popal 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 $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Popal affidavit, the Court was satisfied that the applicant had been notified of the hearing date and time.
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 Popal 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 her 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: 18 July 2024
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