AXO24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1008

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AXO24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1008

File number:	PEG 70 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	2 October 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:	14
Date of hearing:	2 October 2024
Place:	Perth
Applicant:	No appearance by or on behalf of the applicant
Counsel for the First Respondent:	Mr B Mayne
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

ORDERS

PEG 70 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AXO24

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

2 OCTOBER 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 25 September 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 25 September 2024 is dismissed pursuant to rule 13.06(1)(d) of the Rules.

4.There be 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 2.00pm on 2 October 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 25 September 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 25 September 2024 is dismissed pursuant to rule 13.06(1)(d) of the Rules.

   4.There be 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 second and final hearing of the substantive application on 2 October 2024 at 2.00pm. The parties were notified of that listing by my chambers (via email) on 13 September  2024.

5. On 25 September 2024, the applicant wrote to the Court via email stating (without alteration):

   Dear Associate Judge Kendall

   I apologize for not being able to attend the hearing on October 2, 2024, I have booked my flight and will be permanently leaving Australia on January 8, 2025, due to the personal reasons, I do not wish to waste your time attending this hearing. However, I would like to respectfully request to spend my last Christmas in Australia. After all, I have lived in Australia for seven years and have developed a deep attachment to this place. I would like to say goodbye to the people and things here before I leave Australia at the aforementioned time. Due to some issues, I must leave Australia and return to my country to resolve them. I am truly sorry for any inconvenience this may cause, and I am grateful for the nurturing I have received in Australia; it has become my second home.

   Thank you very much for your understanding,

   Sincerely,

   AXO24

6. On 26 September 2024, my chambers responded to the applicant as follows:

   Dear Mr Applicant

   Thank you for your email and the document attached.

   The Court is sympathetic to the concerns raised by you in the correspondence below.

   It is unclear from your email what it is that you are seeking from the Court.

   To the extent that you require assistance with your visa status or your stay in Australia, unfortunately the Court is not able to assist. You will need to contact the Department of Home Affairs directly to discuss those issues.

   To the extent that you are seeking an adjournment of the hearing listed on 2 October 2024 at 11.00am, His Honour Judge Kendall notes that you have not filed an application in a proceeding requesting that adjournment, which is the usual process to be followed in those circumstances. Noting that you are unrepresented, however, His Honour is willing to consider the request below in its current form.

   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 11.00am on 2 October 2024. In the event that you are unable to attend the Perth Registry of the Court in person, His Honour will grant you 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 (in support of the adjournment request) 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 you should be prepared to proceed to a final hearing (in relation to the substantive review application) on 2 October 2024 if His Honour considers it appropriate to do so.

   The Court notes that, in the event that you do not appear at the hearing of the interlocutory application for an adjournment and (if deemed appropriate) the final hearing on 2 October 2024, 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. In the event that the applications are dismissed, the Minister may also seek a costs order against you.

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

8. On 29 September 2024, the applicant again wrote to my chambers and stated as follows:

   Dear Associate Judge Kendall

   I will not attend the hearing on October 2, 2024, nor will I attend the online hearing. I cannot provide evidence to the court. At the same time, I am also preparing to leave Australia permanently. I am very sorry.

   Thank you very much for your understanding,

   Sincerely,

   AXO24

9. As outlined above, when the matter came before this Court (on 2 October 2024), despite the matter being called three times, there was no appearance by or on behalf of the applicant. The applicant also failed to appear via video link. Mr Benjamin Mayne (“Mr Mayne”) from Sparke Helmore appeared on behalf of the first respondent (the “Minister”).

10. 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. 

11. Mr Mayne advised the Court that the Minister opposed the adjournment request. Mr Mayne 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. Mr Mayne further confirmed that the Minister would not seek costs in relation to the adjournment request.

12. The correspondence from the applicant and the responses from my chambers (as outlined above and in relation to the adjournment request) was tendered and referenced as Exhibit 1.

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

    CONCLUSION

14. 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 fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       10 October 2024