AUZ22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 238

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AUZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 238

File number:

PEG 40 of 2022

Judgment of:

JUDGE KENDALL

Date of judgment:

27 March 2023

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – applicant represented – no appearance by or for the applicant – 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:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)

Migration Act 1958 (Cth), s 477

Division:

Division 2 General Federal Law

Number of paragraphs:

23

Date of hearing:

27 March 2023

Place:

Perth

Applicant:

No appearance by or on behalf of the applicant

Solicitor for the Applicant:

VL Legal

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore

ORDERS

PEG 40 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AUZ22

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 MARCH 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

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 $6,500.

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

1. This matter was listed for a final hearing before the Court at 9.30am on 27 March 2023. When the matter was called, there was no appearance by or for the applicant.

2. In the circumstances, the Court made the following orders:

   1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

   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 $6,500.

   4.        Written reasons for judgment to be published from Chambers at a later date.

3. 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

4. Before the Court is an application for judicial review filed in the Perth Registry of this Court on 1 March 2022 (the “application”).  That application was filed by the applicant’s legal representative.  That legal representative was on the record at the time of the hearing for this matter. The application for judicial review was accompanied by an affidavit which was affirmed by the applicant on 1 March 2022.

5. The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 6 March 2018. As per s 477 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 10 April 2018. The application filed on behalf of the applicant was filed 1,421 days outside of the requisite timeframe.

6. On 3 May 2022, orders were made by Registrar Carney programming the matter to a “hearing of the application for an extension of time and, if the extension is granted, final hearing of the substantive application” on “a date to be advised”.

7. 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 12.00pm on 30 September 2022.

8. On 10 July 2022, my chambers notified the parties (via email) that the matter had been re-listed and would now be heard by the Court at 11.00am on 27 March 2023.

9. On 26 February 2023, my chambers contacted the parties (via email) to notify them that the hearing start time had changed and that the matter would commence at 9.30am on 27 February 2023.

10. On 24 March 2023, the parties were reminded of the date, time and location of the hearing (via email).  They were also provided with instructions for an “in person” attendance at the Court.

11. As outlined above, when the matter came before this Court (on 27 March 2023), there was no appearance by the applicant’s legal representative or by the applicant himself. Ms Georgina Ellis (“Ms Ellis”) appeared at the hearing on behalf of the first respondent (the “Minister”).

12. At the hearing of the matter, Ms Ellis advised the Court that she had been in contact with the applicant’s legal representative during the afternoon of 24 March 2023 and was advised by him that the applicant wished to discontinue his matter. At the applicant’s legal representative’s request, Ms Ellis prepared consent orders and provided the orders to the applicant’s legal representative via email that afternoon for signing. Ms Ellis provided a copy of that correspondence to the Court, together with email correspondence evidencing service of the Minister’s submissions and the Court Book.

13. The materials before the Court demonstrate that Ms Ellis (for the Minister) did everything expected of a model litigant to resolve the matter prior to the hearing. 

14. Unfortunately, the applicant’s legal representative did not return the signed consent orders to Ms Ellis prior to the hearing. He also did not appear at the hearing on behalf of the applicant.  Nor did he contact the Court at any time to inform the Court of the applicant’s intention to discontinue his proceeding. Nor did he advise the Court of pending consent orders.

15. This is unfortunate and, thankfully, unusual.  At a minimum, the applicant’s legal representative should have contacted the Court and advised chambers that efforts were being made by him to discontinue the matter, that he had spoken to Ms Ellis and that he had instructions to continue acting on behalf of his client until consent orders had been agreed to. 

16. Correspondence between Ms Ellis and the applicant’s legal representative (as outlined above) was tendered and referenced as Exhibit 1.

17. Correspondence from my chambers (as outlined above) was also tendered and referenced as Exhibit 2.

18. The Court asked Ms Ellis how the Minister wished to proceed in the circumstances.

19. Ms Ellis 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 $6,500.

20. Noting the correspondence contained in Exhibits 1 and 2, the Court was satisfied that the applicant’s legal representative had been properly notified of the hearing date and time and also advised of how he could appear at that hearing.  The applicant’s legal representative had also been provided with a consent order (prepared by Ms Ellis) in the event that the applicant wished to discontinue the proceedings (as the applicant’s legal representative had foreshadowed). The applicant’s legal representative did not to return the signed consent order, he did not appear at the hearing before this Court (on 27 March 2023) and he did not contact Ms Ellis or the Court to explain why he would not appear or why the consent order had not been signed.

21. 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 Ellis was prepared to make oral submissions as required by the Court.

    CONCLUSION

22. 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.

23. 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-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       30 March 2023