BMW18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 340

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BMW18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 340

File number(s):

MLG 769 of 2018

Judgment of:

JUDGE MANSINI

Date of judgment:

5 March 2025

Catchwords:

 MIGRATION – reasons for judgment delivered ex tempore – application for extension of time –  where substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision not to grant a protection visa –  application is dismissed with costs.

Legislation:

Migration Act 1958 (Cth) ss. 476, 477.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.06(1)(c)

Division:

Division 2 General Federal Law

Number of paragraphs:

9

Date of hearing:

5 March 2025

Place:

Melbourne

The Applicant:

No appearance

Solicitor for the Respondents:

Clayton Utz

ORDERS

MLG 769 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BMW18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	5 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent in the proceedings be amended to Minister for Immigration and Multicultural Affairs.

2.The name of the Second Respondent in the proceedings be amended to Administrative Review Tribunal.

3.The application filed on 26 March 2018 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).

4.The Applicant pay the First Respondent’s costs fixed in the amount of $7,328.

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).

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

Judge Mansini

1. Before the Court is an application for an extension of the time for filing where the Applicant seeks review of an administrative decision to affirm an earlier decision to refuse him a protection visa. 

2. The application for judicial review was filed on 26 March 2018 pursuant to s.476 of the Migration Act 1958 (Cth) (Act) and seeks review of a decision of the Administrative Appeals Tribunal (as it then was), made on 26 July 2016, being filed 573 days or one year, 6 months and 28 days outside of the statutory timeframe. The Applicant first sought an extension of the time for filing pursuant to s.477(2) of the Act so that his substantive application could be considered by this Court.

3. Various procedural orders have been made in the matter to date. Most recently, orders made by the Court on 25 October 2024 listed the matter for hearing today, 5 March 2025, and directed the Applicant to file and serve any amended application with proper particulars of the grounds of the application, an outline of written submissions and any additional evidence on which he sought to rely by 4.00 pm on 12 February 2025.  The Court’s orders of 25 October 2024 did not include a notation as to the likely consequences of non-compliance or non-attendance at hearing, but the Applicant had previously, on 9 September 2024, received such notice of the consequences of non-compliance or non-attendance at hearing.

4. The Applicant did not, in any event, file and serve any further materials in accordance with the 25 October 2024 orders, or at all, nor was any communication received by my chambers or, as I understand it, the First Respondent’s representative. 

5. On 14 February 2025, the parties were reminded by chambers of the date, time and location of today’s hearing.  No response was received for or by the Applicant. 

6. Today, 5 March 2025, the matter was called for final hearing.  Mr Macaulay appeared for the First Respondent.  Unfortunately, there was no appearance for or by the Applicant.

7. The Court asked Mr Macaulay how the Minister sought the Court to proceed in the circumstances. Mr Macaulay has advised that they seek the matter be dismissed with costs for non-appearance of the Applicant pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). 

8. Having regard to the aforementioned factual circumstances, the Court may be satisfied that the Applicant has been properly notified of the hearing date and time, what he needed to do to participate and the likely consequences of non-compliance or non-attendance.

9. In the circumstances, I will order that:

   (1)The application be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the GFL Rules.

   (2)That the Applicant pay the First Respondent’s costs fixed in the amount sought of $7,328, which is less than the current scale amount for final hearing.

   (3)I will also make orders amending the names of the First and Second Respondents in the proceedings as sought.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge Mansini.

Associate:

Dated: 12 March 2025