BGQ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 108
•15 February 2023
Federal Circuit and Family Court of Australia
(DIVISION 2)
BGQ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 108
File number: PEG 64 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 15 February 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 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)
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 15 February 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 64 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGQ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
15 FEBRUARY 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 $6,500.
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:
This matter was listed before me for a final hearing at 11.00am on 15 February 2023. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, I 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 $6,500.
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 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 was an application for judicial review filed in the Perth Registry of this Court on 1 April 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 31 March 2022 (and filed in this Court on 1 April 2022).
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 22 March 2022.
On 22 June 2022, orders were made by Registrar Carney in this Court programming the matter to a final hearing “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 15 February 2023.
On 14 February 2023, the parties were reminded of the date, time and location of the hearing by my chambers. They were also given with instructions for an “in person” attendance at the Court.
As outlined above, when the matter came me on 15 February 2023, there was no appearance by or for the applicant. Ms Georgina Ellis (“Ms Ellis”) appeared in person at the hearing on behalf of the Minister.
The affidavit of service of Ms Ellis (affirmed and filed in this Court on 8 February 2023) (the “Ellis affidavit”) was taken as read and in evidence. Ms Ellis took me through correspondence from Sparke Helmore (solicitor for the first respondent (the “Minister”)) outlining service of various documents (as annexed to the Ellis affidavit). Ms Ellis confirmed that Annexure 2 to the Ellis affidavit also advised the applicant that, in the event that he did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek an order for the Minister’s costs.
Correspondence from my chambers (as outlined above) was tendered and referenced as Exhibit 1.
I asked Ms Ellis how the Minister wished to proceed in the circumstances.
Ms Ellis advised 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 $6,500.
Noting the correspondence contained in the Ellis affidavit and Exhibit 1, I 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, I determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Ellis 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 seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2023
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