AVA22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 37
Federal Circuit and Family Court of Australia
(DIVISION 2)
AVA22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 37
File number(s): PEG 36 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 24 January 2023 Catchwords: MIGRATION – Protection 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 (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 24 January 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr C Beetham Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
PEG 36 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVA22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
24 JANUARY 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 $4,189.
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 final hearing at 11.00am on 24 January 2023. When the matter was called, there was no appearance by or for the applicant.
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 $4,189.
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 Perth Registry of this Court on 2 March 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 23 February 2022 and filed on 2 March 2022.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a Confirmation Decision made by the Administrative Appeals Tribunal on 2 February 2022.
On 4 May 2022, orders were made by Registrar Carney in this Court programming the matter to a final hearing “on a date to be advised”.
On 8 July 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing at 11.00am on 24 January 2023.
On 22 January 2023, the parties were reminded of the date, time and location of the hearing and they were also provided with instructions for an “in person” attendance at the Court.
As outlined above, when the matter came before this Court (on 24 January 2023), there was no appearance by or for the applicant. Mr Cheyne Beetham (“Mr Beetham”) of counsel appeared at the hearing on behalf of the Minister.
The affidavit of service of Ms Grace Marie Mickle (affirmed and filed in this Court on 24 January 2023) (the “Mickle affidavit”) was taken as read and in evidence. Mr Beetham took the Court through correspondence from Minter Ellison (solicitor for the first respondent (the “Minister”)) outlining service of various documents (as annexed to the Mickle affidavit). Mr Beetham also provided the Court with further correspondence to the applicant (not annexed to the affidavit but tendered and referenced as Exhibit 1) advising her that, in the event that she did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek the Minister’s costs.
Correspondence from my chambers (as outlined above) was tendered and referenced as Exhibit 2.
The Court asked Mr Beetham how the Minister wished to proceed in the circumstances.
Mr Beetham 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.
Noting the correspondence contained in the Mickle affidavit and Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the hearing date and time and also advised of how she 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 Mr Beetham 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 applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 January 2023
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