AYS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 42
Federal Circuit and Family Court of Australia
(DIVISION 2)
AYS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 42
File number(s): PEG 37 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 27 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 477
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 27 January 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 37 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYS22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
27 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 $5,400.
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 27 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 $5,400.
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 8 March 2022 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 8 February 2022 and filed on 8 March 2022.
The application seeks review of a decision made by the Administrative Appeals Tribunal on 21 January 2021. As per s 477 of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 25 February 2021). The application filed by the applicant was thus filed 375 days outside of the requisite timeframe.
On 5 May 2022, orders were made by Registrar Carney in this Court programming the matter to a hearing “of the application for an extension of time and, if the extension [was] granted, final hearing of the substantive application” “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 27 January 2023.
On 22 January 2023, the parties were reminded of the date, time and location of the hearing. They were also provided instructions for an “in person” attendance at the Court.
Correspondence from my chambers (as set out above) was tendered and referenced as Exhibit 1.
As outlined above, when the matter came before this Court (on 27 January 2023) for a hearing of the extension of time application and (if granted) the substantive matter, there was no appearance by or for the applicant. Mr Jonathon Papalia (“Mr Papalia”) appeared at the hearing on behalf of the Minister.
Mr Papalia took the Court through correspondence from his office to the applicant serving various documents and advising the applicant that, if he did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek the Minister’s costs. That correspondence was tendered and referenced as Exhibit 2.
The Court asked Mr Papalia how the Minister wished to proceed in the circumstances.
Mr Papalia 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 $5,400.
Noting the correspondence contained in 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 he 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 Papalia was prepared to make oral submissions as required in relation to both the application for the extension of time and the substantive application.
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 his 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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