BNH22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 246
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 246
File number: PEG 91 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 29 March 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 29 March 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms I Leonard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 91 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNH22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
29 MARCH 2023
THE COURT ORDERS THAT:
1.Counsel for the first respondent have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs fixed in the sum of $1,900.
5.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 this Court at 9.30am on 29 March 2023. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Counsel for the first respondent have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs fixed in the sum of $1,900.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 10 May 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 4 May 2022.
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 5 January 2022. As per s 477 of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision. That is, by 9 February 2022. The application filed by the applicant in this matter was thus filed 90 days outside of the requisite timeframe.
On 29 July 2022, orders were made by Registrar Carney in this Court programming the matter to a hearing of the application for an extension of time “on a date to be advised”.
On 2 September 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time at 11.00am on 28 March 2023.
On 24 March 2023, the parties were advised that the hearing would commence at 1.00pm (instead of 11.00am as originally listed) and were reminded of the date and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court for the applicant and the Minister’s representative was granted leave to appear at the hearing via video link (at their request).
On 28 March 2023, the parties were advised (via email) that the matter had been re-listed to the following day and that the hearing would proceed at 9.30am (on 29 March 2023).
As outlined above, when the matter came before this Court (on 29 March 2023), there was no appearance by or for the applicant. Ms Leonard appeared at the hearing (via video link) on behalf of the first respondent (the “Minister”).
At the hearing, Ms Leonard sought to rely on an email from Ms Scott to chambers on 27 March 2023 (with attachments). Ms Leonard also sought to rely on the affidavit of service of Ms Scott affirmed and filed on 21 March 2023 (the “Scott affidavit”). This material confirmed service of various documents on the applicant and put the applicant on notice that, should the applicant not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
Correspondence between Ms Scott (as outlined above) was tendered and referenced as Exhibit 1.
The Scott affidavit was taken as read and in evidence at the hearing.
Correspondence from my chambers (as outlined above) was also tendered and referenced as Exhibit 2.
The Court asked Ms Leonard how the Minister wished to proceed in the circumstances.
Ms Leonard advised the Court 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 $1,900.
Noting the correspondence contained in Exhibits 1 and 2 and the Scott affidavit, the Court 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, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Leonard 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 the application for judicial review 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: 30 March 2023
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