BLS23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1235
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLS23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1235
File number(s): SYG 903 of 2023 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 November 2024 Catchwords: MIGRATION – judicial review – application for extension of time – review of delegate’s decision submitted out of time – no application for extension of time made in relation to review of delegate’s decision – dismissal for non-appearance Legislation: Migration Act 1958 (Cth) s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 18 November 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the applicant Solicitor for the First Respondent: Mr C Wang of Clayton Utz Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 903 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLS23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
18 NOVEMBER 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 $4,189.38.
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
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 Tribunal. 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 is taken to have been made on 8 March 2023. The application for an extension of time was 51 days late.
BACKGROUND
Protection Visa Claims
The applicant is a citizen of the People's Republic of China. He entered Australia on 6 August 2017 (CB 15). The applicant filed a protection visa application claiming as follows:
(a)He openly expressed views opposing the Chinese government (CB 30).
(b)His son experienced corporal punishment at a school in China and as a result refused to attend, causing a rapid decline in academic performance (CB 29).
(c)He believes Chinese spies have reported him to the Chinese Consulate in Sydney (CB 30).
(d)If he were to return to China, he will face severe punishment by the police and persecution (CB 30).
On 23 September 2020, the delegate refused to grant the applicant a Protection Visa, finding the applicant did not satisfy the criteria in section 36(2) of the Act (CB 81).
On 2 November 2022, the applicant's migration agent filed an application for review of the delegate’s decision to the Tribunal (CB 89). On 15 November 2022, the Tribunal invited the applicant to comment on the validity of his review application, noting it appeared the application had not been lodged within the required legislative time frame (CB 104).
On 29 November 2022, the applicant's current migration agent responded to the Tribunal's invitation, stating that the applicant’s former migration agent for his initial visa application, had not informed the applicant of the delegate's refusal decision (CB 106).
TRIBUNAL’S DECISION
On 8 March 2023, the Tribunal refused the applicant's application for review. It found the applicant had been notified of the delegate's decision on 23 September 2020 ([3] of the reasons). The Tribunal noted the prescribed period to apply for review of the delegate’s decision expired on 29 October 2020 ([8] of the reasons). Accordingly, the Tribunal did not have jurisdiction ([9] – [10] of the reasons).
PROCEDURAL HISTORY
On 2 June 2023, the applicant filed an application for judicial review to this Court with a supporting affidavit seeking an extension of time and judicial review of the Tribunal 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 30 May 2023.
At the callover on 30 July 2024 before Registrar Cummings, the applicant appeared by telephone assisted by a Mandarin interpreter. In the order made, it was noted that the matter was to be listed for an extension of time hearing. Further, the order noted the applicant had been encouraged to put on evidence as to the delay in filing the application with the Court. To date, no further documents have been filed by the applicant in relation to why the Court should grant an extension of time.
A notice of listing was sent by email on 26 September 2024, notifying both parties of the date, time and location of the hearing.
On 11 November 2024, the Minister filed an affidavit of service, stating as follows:
(a)On 9 June 2023 sealed copies of the Notice of Address for Service, Response and Submitting Notice were sent to the applicant’s nominated email address and to his nominated postal address. On 6 November 2024, further copies of the Notice of Address for Service, Response and Submitting Notice were sent to the applicant’s nominated email address and to his nominated postal address.
(b)On 17 January 2024 a sealed copy of the Court Book was sent to the applicant’s nominated email address and to his nominated postal address.
(c)On 19 August 2024 a further sealed copy of the Court Book was sent to the applicant’s nominated email address.
(d)On 20 August 2024 a sealed copy of the Minister’s Written Submissions was sent to the applicant’s nominated email address and to his nominated postal address.
In response to emails sent from my chambers to the parties on 11 November and 13 November 2024 regarding preparation for the hearing, the applicant sent an email to my chambers on 15 November 2024 stating that he wished to discontinue.
On 15 November 2024 I made orders in chambers granting leave for the applicant to file a Notice of Discontinuance by close of business that same day. No Notice of Discontinuance was filed and the Court has received no further correspondence from the applicant.
At 10:21am 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 appearance from the applicant. As a result of the non-appearance, 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
In light of the contents of the Affidavit of Service and the email dated 26 September 2024 referred to in [9] of this judgment, I am satisfied the applicant had sufficient notice of the Extension of Time Hearing. Therefore, the application for an 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 $4,189.38. 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 $4,189.38.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 November 2024
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