AXF24 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 836
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AXF24 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 836
File number: PEG 68 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 21 August 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of 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: 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)
Cases cited: AXF24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 835 Division: Division 2 General Federal Law Number of paragraphs: 20 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 substantive application filed by the applicant on 26 February 2024 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 applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.Written reasons for judgment in relation to the substantive application 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 1.00pm on 21 August 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.The substantive application filed by the applicant on 26 February 2024 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 applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.Written reasons for judgment in relation to the substantive application 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 26 February 2024 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 23 February 2024 (and filed in this Court on 26 February 2024).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal on 31 January 2024.
On 21 March 2024, orders were made by Registrar Downing in this Court programming the matter to a “final hearing on a date to be advised”.
On 9 May 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing at 1.00pm on 28 August 2024.
On 30 July 2024, my chambers notified the parties that the hearing on 28 August 2024 had been vacated and explained that the matter had been re-listed for a final hearing at 1.00pm on 21 August 2024.
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.
As outlined by this Court in AXF24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 835 (“AXF24”), the applicant 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 the applicant requesting an adjournment and the response from my chambers (as set out in AXF24) was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before this Court (on 21 August 2024) for a hearing of the substantive application, there was no appearance by or on behalf of the applicant. Ms Tareena Martin (“Ms Martin”) appeared at that hearing on behalf of the first respondent (the “Minister”).
Correspondence from my chambers to the parties in relation to the listing and hearing arrangements was tendered and referenced as Exhibit 2.
The affidavit of service of Ms Aatika Ismailjee (affirmed and filed on 20 August 2024) (the “Ismailjee affidavit”) was taken as read and in evidence.
The Court asked Ms Martin how the Minister wished to proceed in the circumstances.
Ms Martin advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and requested costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibits 1 and 2 and the Ismailjee affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date, time and 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 Ms Martin 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 twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 September 2024
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