BEB22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 825
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEB22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 825
File number(s): SYG 493 of 2022 Judgment of: JUDGE KAUR-BAINS Date of judgment: 6 September 2024 Catchwords: MIGRATION – judicial review – application for extension of time – dismissal for non-appearance – 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 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 2 September 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Mr J Law of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 493 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEB22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Application for an extension of time and the proceedings are 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 amount of $4,000.
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 Kaur-Bains
By an application filed on 28 March 2022, the Applicant seeks an extension of time under
s 477(2) of the Migration Act 1958 (Cth) (Act), in which to apply for judicial review of a decision of the Second Respondent (Tribunal) dated 19 July 2021. Pursuant to s 477(1) of the Act, an application for judicial review was required to be filed 35 days after the date of the migration decision. The migration decision was taken to have been made on 19 July 2021. On 28 March 2022, the Applicant applied for an extension of time in which to seek judicial review. The application for judicial review is about 217 days out of time.
BACKGROUND
Protection Visa
On 16 January 2020 the Applicant applied for a Protection (class XA, subclass 866) visa (visa), on the basis that she feared harm if she returned to China as a result of debts owed to moneylenders. On 5 February 2020 the Department of Home Affairs sent the Applicant an acknowledgment of a valid application for the visa. The Department advised the Applicant that she could provide additional information related to her protection claims and that a decision could be made without another opportunity to present further information. The Applicant did not provide any further material in support of her visa application. On 8 April 2020 a delegate of the First Respondent (Minister) refused the visa application and wrote to the Applicant at the nominated email address. The delegate was satisfied, based on the country information, there was effective protection measures available to the Applicant in China such that she did not have a well-founded fear of persecution. The letter informed the Applicant she was entitled to apply to the Tribunal and the time within which such an application needed to be made.
Tribunal’s Decision
On 3 June 2021 the Applicant applied for merits review of the delegate's decision. As the Applicant was taken to have been notified of the delegate’s decision on 8 April 2020, the application before the Tribunal was about 395 days out of time. On 30 June 2021 the Tribunal emailed the Applicant informing her that her application appeared not to be valid as it appeared to have been made out of time and invited the Applicant to make any comments about the validity of her application in writing by 14 July 2021. No response was received from the Applicant.
On 19 July 2021 the Tribunal found it did not have jurisdiction, as the application for review of the delegate’s decision was not made within time. On 20 July 2021 the Tribunal sent an email to the Applicant notifying her of its decision, along with a copy of the decision record and a fact sheet which, amongst other things, detailed the process by which the Applicant could apply for judicial review of the Tribunal’s decision to this Court.
PROCEDURAL HISTORY
On 28 March 2022 the Applicant filed an Application and supporting Affidavit seeking judicial review of the Tribunal’s decision. The Applicant listed the same street address for service, email address and telephone number in both the Application and the supporting Affidavit affirmed on 25 March 2022. Subsequent references will be made to those street and email addresses and telephone number respectively.
On 20 June 2022 Registrar Carney issued standard timetabling orders in this matter for a hearing date to be advised to the parties at a future date. The matter was listed for Callover before Registrar Van Der Westhuizen on 9 April 2024. On 26 March 2024 in an email containing the Notice of Listing for that Callover, the Applicant was informed by the Registry:
It is very important you attend the Callover listing. If you miss the Callover listing and do not appear by telephone, your matter may be dismissed, and costs may be ordered against you.
(emphasis as in original)
At the Callover on 9 April 2024 the Applicant did not appear. However, it was noted in the orders made at the Callover that the Minister had incorrectly informed the Applicant that her attendance at the Callover was not required.
On 9 August 2024 the Applicant was sent a Notice of Listing by email to the address she had nominated, notifying her that the Extension of Time Hearing was listed for Monday
2 September 2024 at 10:15am in person at the William Street Registry.
On 20 August 2024 the Minister filed an Affidavit of Service, affirmed on 20 August 2024, evidencing service of the following:
(a)On 5 May 2022 sealed copies of the Minister’s Notice of Address for Service and Response by email to the Applicant’s nominated email address.
(b)On 31 January 2023 sealed copies of the Court Book sent to the Applicant’s nominated email address and to her nominated postal address.
(c)On 11 July 2024 a sealed copy of the Minister’s Written Submissions by email to the Applicant’s nominated email address.
On 27 August 2024 the Minister sent an email to the Applicant which detailed the following:
(a)The Minister’s representative attempted to call the Applicant on the mobile number listed in her application but there was no answer.
(b)The Minister’s representative called back to the same number and a person by the name of ‘Hayden’ answered. Hayden stated to the Minister’s representative that the Applicant was present, however she did not speak English.
(c)The Applicant requested she be emailed at her nominated email address.
(d)
The Minster informed the Applicant that she was required to attend the hearing on
2 September 2024 and notified her that, if she failed to appear, the Minister may seek orders that her application be dismissed with costs without further notice.
At 10:15am of the morning of the hearing, there was no appearance by or on behalf of the Applicant in Court. The matter was called 3 times outside of the Courtroom, with no response from the Applicant. As a result of the non-appearance at the hearing by the Applicant, the Minister made an application that the proceedings 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) (Rules).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
CONSIDERATION
Given the contents of the Affidavit of Service filed by the Minister, the Notice of Listing sent by the Court and the telephone calls from the Minister’s representative, I am satisfied the Applicant had sufficient notice of the Extension of Time Hearing. Therefore, the application for extension of time and the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the Applicant pay the Minister’s costs fixed in the amount of $4,000. I am satisfied this is an appropriate amount in the circumstances and order the Applicant pay the Minister’s costs fixed in the amount of $4,000.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 6 September 2024
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