AXF24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 835

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AXF24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 835

File number:	PEG 68 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	21 August 2024
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for a hearing of the interlocutory application for an adjournment – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) 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), r 13.06(1)(d)
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of hearing:	21 August 2024
Place:	Perth
Applicant:	No appearance by or on behalf of the applicant
Counsel for the First Respondent:	Ms T Martin
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

ORDERS

PEG 68 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AXF24

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	21 AUGUST 2024

THE COURT ORDERS THAT:

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

2.The request from the applicant made via email on 21 August 2024 for an adjournment of the final hearing in this matter is taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) is dispensed with.

3.The interlocutory application for an adjournment made by the applicant on 21 August 2024 is dismissed pursuant to r 13.06(1)(d) of the Rules.

4.No order as to costs.

5.Written reasons for judgment in relation to the interlocutory application for an adjournment will 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 interlocutory application (adjournment request) was listed before the Court at 1.00pm on 21 August 2024. When the matter was called, there was no appearance by or on behalf of 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 and Multicultural Affairs”.

   2.The request from the applicant made via email on 21 August 2024 for an adjournment of the final hearing in this matter is taken as an adjournment request and the requirement for the applicant to file an application in a proceeding pursuant to rules 4.01(4) and 4.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) is dispensed with.

   3.The interlocutory application for an adjournment made by the applicant on 21 August 2024 is dismissed pursuant to r 13.06(1)(d) of the Rules.

   4.No order as to costs.

   5.Written reasons for judgment in relation to the interlocutory application for an adjournment will be published from Chambers at a later date. 

3. These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the interlocutory application for an adjournment for non-appearance.

   BACKGROUND

4. This matter was listed for a final hearing of the substantive application on 21 August 2024 at 1.00pm. The parties were notified of that listing by my chambers (via email) on 30 July 2024.

5. On 16 August 2024, 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.

6. On 21 August 2024 at 6:53am (being the day of the scheduled hearing), the applicant wrote to the Court via email stating (without alteration):

   Dear Judge,

   I am pleased to inform you that I cannot attend the hearing as my son and I have had cough and flu symptoms since last night.

   As we just arrived from Carvarvon yesterday, I am not sure I can manage via video-link or telephone today as I have a very bad headache.

   Please advise

   Thanks and regards

   [Applicant]

7. No medical certificate or supporting evidence was provided with that correspondence.

8. Later that same day (also on 21 August 2024) my chambers wrote to the parties as follows:

   I refer to the email correspondence below in relation to the applicant’s adjournment request. I confirm that the matter is currently listed for a final hearing before this Court today (21 August 2024) at 1.00pm.

   The Court is sympathetic to the concerns raised by the applicant in the correspondence to this Court.

   His Honour Judge Kendall notes, however, that the applicant has not filed an application in a proceeding requesting an adjournment, which is the usual process to be followed when seeking an adjournment. Noting that the applicant is self-represented, His Honour is willing to consider the request below in its current form. His Honour does note, however, that no medical evidence has been provided in support of the adjournment request.

   His Honour asks that the applicant provide medical evidence to the Court in support of the adjournment request prior to the scheduled listing at 1.00pm today.  Any such medical evidence should explain to the Court why the applicant is unable to participate in a Court hearing (either in person or via video link), or, indeed, why the applicant is unable to participate in a court hearing more generally.

   In the circumstances, His Honour considers it appropriate for the matter to be listed for a hearing of the interlocutory application for an adjournment followed by a final hearing (if deemed appropriate) at 1.00pm today. In the event that the applicant is unable to attend the Perth Registry of the Court in person, the applicant has leave to appear via video link (using Microsoft Teams) and details in that regard are set out below.

   The purpose of the interlocutory hearing is to allow His Honour to have a conversation with the parties about the request for an adjournment and to discuss any evidence provided by the applicant with the parties. Should His Honour determine that the matter cannot proceed to a final hearing, the hearing will be vacated and the matter re-listed for a final hearing at a later date. If His Honour considers that the matter can proceed to a final hearing, the matter will be heard immediately following the interlocutory hearing.

   For the avoidance of confusion, Chambers confirms that the parties should be prepared to proceed to a final hearing (in relation to the substantive review application) today if His Honour considers it appropriate to do so.

   The Court notes that, in the event that the applicant does not appear at the hearing of the interlocutory application for an adjournment and (if deemed appropriate), the final hearing this afternoon, the Court may dismiss both the interlocutory application for an adjournment and the substantive review application for non-appearance pursuant to rules 13.06(1)(d) and 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) respectively.

9. The applicant was also provided instructions on how she could appear at the hearing via video link.

10. As outlined above, when the matter came before this Court (on 21 August 2024), despite the matter being called three times, there was no appearance by or on behalf of the applicant. Ms Tareena Martin (“Ms Martin”) from Sparke Helmore appeared on behalf of the first respondent (the “Minister”).

11. The Court indicated that it was prepared to accept the applicant’s earlier email to the Court as an interlocutory request for an adjournment and was prepared to proceed on that basis. 

12. Ms Martin advised the Court that the Minister opposed the adjournment request. Ms Martin also told the Court that the Minister would also be agreeable to the adjournment application being dismissed pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) if the Court was minded to do so. Ms Martin also confirmed that the Minister would not seek costs in relation to the adjournment request.

13. Correspondence from the applicant and the response from my chambers (as outlined above and in relation to the adjournment request) was tendered and referenced as Exhibit 1.

14. Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the interlocutory hearing and how she could appear at that hearing (either in person or via video link).

    CONCLUSION

15. In the circumstances, the Court made orders to dismiss the interlocutory application for an adjournment for non-appearance, as outlined at [2] above. There was no order as to costs, as agreed to by the Minister.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       5 September 2024