AXO24 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1009
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AXO24 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1009
File number: PEG 70 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 2 October 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: AXO24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1008
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Division: Division 2 General Federal Law Number of paragraphs: 20 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 substantive application filed by the applicant on 28 February 2024 is dismissed pursuant to rule 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 $6,900.
3.Written reasons for judgment in relation to the substantive application 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
This matter was listed before me for a (second and final) hearing at 2.00pm on 2 October 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, I made the following orders:
1.The substantive application filed by the applicant on 28 February 2024 is dismissed pursuant to rule 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 $6,900.
3.Written reasons for judgment in relation to the substantive application will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 above. They explain why I 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 me is an application for judicial review filed in the Perth Registry of this Court on 28 February 2024 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 27 February 2024 (and filed in this Court on 28 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 of 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 26 July 2024.
The applicant appeared at the first hearing in this matter on 26 July 2024. At that hearing, however, the applicant raised concerns about the conduct of his migration agent which arguably amounted to allegations of fraud. On that basis, and noting the comments made by the Full Court of the Federal Court of Australia in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, I determined that it was in the applicant’s interest to adjourn the hearing and allow him additional time to provide evidence about the alleged fraudulent conduct of his agent.
The matter was re-listed a number of times (at both the applicant’s request and because of judicial unavailability).
As outlined by this Court in AXO24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1008 (“AXO24”), the applicant sought an adjournment of the substantive native hearing to “spend [his] last Christmas in Australia” and indicated that he intended to leave Australia. 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 AXO24) was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before me (on 2 October 2024) for a hearing of the substantive application, there was no appearance by or on behalf of the applicant. Mr Benjamin Mayne (“Mr Mayne”) 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 Mr Mayne (affirmed on 15 July 2024 and filed on 18 July 2024 (the “Mayne affidavit”)) was taken as read and in evidence.
I asked Mr Mayne how the Minister wished to proceed in the circumstances.
Ms Martin advised 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 $6,900.
Noting the correspondence contained in Exhibits 1 and 2 and the Mayne affidavit, I was satisfied that the applicant had been properly notified of the hearing date, time and how he could appear at that hearing.
In relation to the costs order sought by the Minister, I determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Mayne was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, I made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
I note 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 (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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