Azt23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 295
•2 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZT23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 295
File number: PEG 57 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 2 April 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 rule 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)
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 2 April 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 57 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZT23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 APRIL 2024
THE COURT ORDERS THAT:
1.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.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 for a final hearing before the Court at 1.00pm on 2 April 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 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).
2. The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3. Written reasons for judgment to 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 19 April 2023 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 18 April 2023 (and filed in this Court on 19 April 2023).
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 (the “Tribunal”) on 5 April 2023. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 22 August 2023, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”.
On 30 August 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 1.00pm on 12 February 2024.
On 28 September 2023, my chambers notified the parties that the hearing listed on 12 February 2024 had been vacated and it had been re-listed to 2 April 2024 at 1.00pm.
On 28 March 2024, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court.
When the matter came before the Court (at 1.08pm on 2 April 2024), there was no appearance by on behalf of the applicant. Mr Benjamin Mayne (“Mr Mayne”) from Sparke Helmore appeared at the hearing on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear.
The Court asked Mr Mayne how the Minister wished to proceed.
Mr Mayne advised the Court that the Minister sought to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Mr Mayne also sought the Minister’s costs, fixed in the sum of $6,500.
In support of that position, Mr Mayne sought to rely on the email correspondence from my chambers to the parties (as outlined above).
Mr Mayne also relied on the affidavit of service of Ms Aatika Ismailjee (affirmed and filed on 26 March 2024 (the “Ismailjee affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at a scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs.
The Ismailjee affidavit was taken as read and in evidence.
Correspondence from my chambers to the parties (detailed above) was tendered and referenced as Exhibit 1.
Noting the correspondence contained in the Ismailjee affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also properly advised of how he could appear at that hearing and the possible costs consequences of non-appearance.
In relation to the costs order sought on behalf of the Minister, the Court 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, 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 twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 April 2024
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