BNR22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 359
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNR22 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 359
File number(s): SYG 632 of 2022 Judgment of: JUDGE DOUST Date of judgment: 14 March 2025 Catchwords: MIGRATION — Judicial review — protection visa — non‑appearance of applicant — default judgment — leave for notice of discontinuance refused — application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) rr 13.06(1)(c), 17.02, 17.05
Federal Court Rules 2011 (Cth) r 36.03
Migration Act 1958 (Cth) ss 476, 477
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 29 January 2025 Place: Sydney The Applicant: No appearance by or on behalf of the applicant Solicitor for the First Respondent: Ms K Pieri, MinterEllison The Second Respondent Submitting appearance ORDERS
SYG 632 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNR22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The applicant's application pursuant to s 477 of the Migration Act 1958 (Cth) for an extension of time is dismissed.
2.The application lodged 22 April 2022 is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $4,189.38.
4.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
5.When the first respondent serves a copy of these orders upon the applicant, it shall also provide the applicant a copy of r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) (GFLRules).
6.Pursuant to r 17.02 of the GFL Rules, Orders 1 to 5 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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 DOUST:
I have before me an application made by the first respondent to dismiss the application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The application is made in circumstances where the matter has been listed for final hearing before me at 2:15pm this afternoon, Wednesday, 29 January 2025. When the matter was first called on shortly after 2:15pm, the time of listing, there was no appearance by or on behalf of the applicant. At the time of giving judgment, which is now 2:51pm, there is still no appearance on behalf of the applicant, notwithstanding that the matter was called outside the courtroom a few minutes ago.
I am satisfied in the circumstances that it is appropriate to dismiss the application in accordance with the application made by the first respondent. My reasons are as follows.
This is a matter where the applicant commenced his application in the Court on 22 April 2022. The application seeks judicial review of a decision of the Administrative Appeals Tribunal given on 15 June 2021. It is immediately apparent from a consideration of those dates that the application is significantly out of time for an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). Pursuant to s 477 of the Act, such an application must be brought within 35 days of the date of the decision of the Administrative Appeals Tribunal in respect of which the order for review is sought.
After the application was commenced by the applicant on 22 April 2022, the Court's migration team wrote to the applicant by email on 16 May 2022 to advise him that his application had been accepted for filing. That email annexed a document described as "Next Steps". The document included the following instructions:
Step 4 – Hearing.
The Court will notify you when your matter is listed for a hearing. Usually this will be for the final hearing where you will have the opportunity to make arguments to a judge of the Court about the errors you say were made in the migration decision that you are asking the Court to review.
However, some matters may be listed for other reasons. You will be advised of the reason for the listing when you are notified that your matter has been listed for a hearing.
You must attend any hearing in your matter unless the Court tells you that your attendance is not required. If you fail to attend a hearing, your matter may be dismissed for non-appearance, and you may be ordered to pay the respondent's legal costs.
The Next Steps document went on to advise the applicant that should he change address, telephone number, email address, or lawyer, he should complete a notice of address for service form and file it with the Court. The Next Steps document also directed the applicant to the Court's local registry, its website (the address of which the document provided), or the telephone number of the local registry as means by which to obtain further information.
Following the commencement of the proceeding, on 6 July 2022, the Migration Team of the Court emailed the applicant advising that a Registrar had made timetabling orders in the matter and provided a copy of those orders. The email advised that the Court would notify the applicant when the matter was listed for hearing. On 26 July 2022, the first respondent's representative served a copy of the Court Book, which I have received into evidence on this application, by email to the email of the applicant that is listed in the application made to the Court.
The following year, the matter was listed for a callover before a Judicial Registrar of the Court on 24 May 2023. On 9 May 2023, the Migration Team of the Court emailed the applicant advising of that date. The email contained the following instruction:
It is very important you attend the callover. If you miss the callover and do not appear by telephone, your matter may be dismissed and costs may be ordered against you.
The applicant appeared by telephone at the callover before Judicial Registrar Cummings on 24 May 2023. Subsequently, the Court's Migration Team emailed the applicant enclosing the orders that had been made on the callover. Included in that email was the following advice:
Parties will be advised by email once this matter is set down for a further hearing in due course.
On 9 July 2024, the Migration Team again emailed the applicant and the first respondent's representatives advising the matter was listed for callover before Judicial Registrar Cummings on 30 July 2024. That email advised the following:
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.
A further email of that same day from the Migration Team to the applicant advised as follows:
In addition to my earlier email, please also note that this matter is being considered for a hearing as soon as in late August 2024.
The applicant appeared by telephone at the callover before Judicial Registrar Cummings on 30 July 2024. Following that callover, the Migration Team again emailed the applicant attaching the orders made on that day. That email stated:
The parties will be advised by email in due course once this matter has been set down for a final hearing before a judge.
The email also advised as follows under the heading, “Reminder for All Applicants”:
If you change address, telephone number, email address or lawyer, please ensure you complete a notice of address for service form.
The email then directed the applicant how to go about obtaining and filing such a form, and also directed the applicant to further information available for applicants on the Court's website, as well as a list of organisations that may have been able to provide him with free or low-cost legal advice and assistance.
The above emails were sent to the applicant at the email address nominated on his application to the Court.
On 30 July 2024, a Judicial Registrar made orders for the matter to be listed for an extension of time hearing, and if an extension is granted, for a final hearing on a date to be advised. The Judicial Registrar also made orders for the applicant to file and serve the following, on or before 13 August 2024:
(a)any amended application with proper particulars of the grounds of the application;
(b)any written submissions; and
(c)any additional evidence on which the applicant sought to rely.
The Court's files do not record the applicant having filed any such documents in accordance with that direction of the Court.
The orders made by the Judicial Registrar on 30 July 2024 also included an order directing the first respondent to file and serve any written submissions and additional evidence on which it sought to rely on or before 20 August 2024. The first respondent duly filed a written outline of submissions with the Court on 20 August 2024 and served that outline of submissions upon the applicant by email on 20 August 2024.
On 15 January 2025, my Chambers sent a notice of listing to the parties by email advising that the matter was listed for hearing on 29 January 2025 at 2:15 pm. That listing notice advised the courtroom and the address of the building. It also contained the following instruction to the parties:
If any party is unavailable to attend, please advise Chambers and provide reasons by reply email no later than two (2) business days from the date of this correspondence.
On 16 January 2025, the solicitors for the first respondent sent a letter to the applicant by email to the email address nominated by the applicant in his application to this Court. The letter enclosed a copy of the email from my Chambers to the parties dated 15 January 2025 advising of the listing, and the letter repeated within it the details of the hearing date, time, and location, including the courtroom number. The letter also included the following:
If you do not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under paragraph 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) with costs.
In the event, the application foreshadowed by the first respondent has been made to me today. It is now 3:09pm and there is not yet any appearance on behalf of the applicant. I am satisfied that sufficient time has been allowed today for the applicant to attend if he wished to appear and be heard on his application for an extension of time.
I have regard to the fact that, as recited in the foregoing history, the applicant has been put on notice on several occasions about the necessity to attend each listing before the Court and as to the prospect, in the event of his non-attendance, of dismissal of the application. It is obviously incumbent on a party seeking relief from the Court to ensure that they prosecute their proceeding with diligence.
I have particular regard to the fact that the applicant has been contacted recently by both the Court and the first respondent's representatives in communications which, in their respective ways, emphasised the need to attend at the hearing of the matter, and the possible consequences of non-attendance.
I have regard to the fact that the Court has a busy list with many applicants seeking to be heard by the Court, and that in those circumstances there is, as I have previously mentioned, an imperative for parties to pay attention to their obligations to prosecute their matter diligently and appear whenever the matter is listed before the Court. Failure to do so obviously involves a waste of resources both of the Court and also of other parties.
In all the circumstances, I am satisfied it is appropriate to dismiss the application.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 14 March 2025
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