BQD21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 344
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 344
File numbers: MLG 1295 of 2021
MLG 1821 of 2021Judgment of: JUDGE CHAMPION Date of judgment: 3 May 2023 Catchwords: MIGRATION LAW – Protection visa – Decision of the Administrative Appeals Tribunal – Judicial review application filed out of time – Application filed for extension of time – No appearance by or for the applicants – 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) ss.426A, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 13.06, 17.01
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submissions: 3 May 2023 Date of hearing: 3 May 2023 Place: Melbourne Counsel for the Applicants: No appearance Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1295 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQD21
First Applicant
BQE21
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.The application for an extension of time by the applicants is 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).
2.The applicants pay the first respondent’s costs fixed in the sum of $6,500.
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).
ORDERS
MLG 1821 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQD21
First Applicant
BQE21
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
3 May 2023
THE COURT ORDERS THAT:
1.The application be dismissed pursuant to r. 13.06(1)(c) of the Rules.
2.The applicants pay the first respondent’s costs fixed in the sum of $6,500.
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 TranscriptJUDGE CHAMPION:
INTRODUCTION
In this matter, the court has two applications before it. The first application is recorded in the Court files as number MLG1295 of 2021. The second application is recorded in the Court files as number MLG1821 of 2021. In both applications there are the same applicants designated as follows: BQD21 and BQE21. I understand that BQD21 and BQE21 are husband and wife. They are citizens of Thailand.
When these matters were called on for hearing this morning there was no appearance by either applicant in either matter. Ms Liddy, who appeared on behalf of the first respondent in both matters, applied for orders in both matters pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for the dismissal of the applications because the applicants were absent. I have decided to accede to Ms Liddy’s application. These are my reasons. It is, however, convenient to deal with the matters separately in the interests of clarity.
MLG1295/2021
In this matter both applicants were provided with an invitation to appear before the Administrative Appeals Tribunal for a hearing scheduled on 21 April 2021. Neither applicant attended the Tribunal hearing, and the Tribunal duly proceeded to dismiss their applications without further consideration, pursuant to its power under section 426A(1A)(b) of the Migration Act 1958 (Cth).
The applicants were notified that they had a right within 14 days of receiving notice of the decision to apply to the Tribunal for reinstatement of the application. When the applicants did not apply for reinstatement of their applications the Tribunal, by way of a confirmation decision, confirmed the dismissal of their applications in reliance on its power under section 426A(1E) of the Act. That occurred on 6 May 2021.
The applicants made an application for judicial review to this Court on 16 June 2021, six days later than the permissible 35-day limit set out in s. 477 of the Act. They therefore required an extension of time to pursue the matter. In terms of the applicants’ non-appearance when the matter was called on for hearing this morning, I note the following:
(1)The applicants participated in a callover before a registrar of this Court on 16 February 2023. They were then participants in the hearing. Following that callover, on two occasions my chambers provided notice to the applicants of the listing of this matter this morning. The first occasion was by email from my chambers dated 1 March 2023. The second occasion was by an email sent from my chambers on 26 April 2023.
(2)Further, I received into evidence an affidavit of Ms Tareena Martin, a lawyer for the first respondent, made on 26 April 2023 in this matter. It is exhibit R1. In her affidavit, Ms Martin deposed that she had served the court book in this matter on the applicants and an outline of the first respondent’s submissions. Further, I note that the lawyers for the first respondent confirmed the hearing date of 3 May 2023 by a letter sent by email on 19 April 2023 to the applicants.
Nonetheless, when the matter was called on for hearing this morning at 10:00 am the applicants did not appear. I had the matter called outside the Court by my associate and there was no appearance. I had the matter called a second time outside the Court at approximately 10.30 am, and there was no appearance.
Taking into consideration the correspondence of my chambers, and the affidavit of service with relevant materials made by Ms Tareena Martin on 26 April 2023, I am satisfied that the applicants have been properly notified of the hearing date and time, as well as what may occur in the event that the applicants did not attend the scheduled hearing.
On that basis I will dismiss the matter pursuant to r. 13.06(1)(c) of the Rules. I will fix costs in the sum of $6500, as sought by the Minister.
I note for completeness that the applicants may apply to vary or set aside a judgment made if in the absence of a party under rule 17.05(2) of the rules.
MLG1821/2021
I turn now to the second matter. In this case, there was a decision of the Tribunal made on 28 June 2021. The reasons for the dismissal are set out in the Court Book (CB104) prepared by the first respondent in this matter. This was a slightly different decision. The Tribunal set out at [2] of its reasons that the Tribunal had found that it had no jurisdiction to review the decision because an earlier application for review of the same delegate’s decision had previously been made. That earlier decision is the decision I have previously referred to, which is the subject of the judicial review application in matter MLG1295/2021.
In this matter, the decision of the Tribunal having been made on 28 June 2021, the same applicants, namely BQD21 and BQE21, made an application for judicial review of the Tribunal’s decision from 28 June 2021 by application to this court on 26 July 2021. This application therefore was made within the permitted 35 days allowed under s. 477 of the Act. It was listed for final hearing today. It was listed at the same time as MLG1295/2021, given that the same applicants were involved.
I am satisfied that the applicants were notified of the scheduled hearing today in matter MLG1821/2021 in the following ways:
(1)There was an email from my chambers sent on 3 March 2023, which set out notification of the hearing.
(2)A further email from my chambers, dated 27 April 2023 noted that this matter would be heard at the same time as MLG1295/2022, namely, today 3 May 2023 at 10:00 am. This email was sent to the updated address for service, which had been provided by the applicants at the callover in which they participated on 16 February 2023.
(3)In this matter, I also have an affidavit of service of relevant documents made by Ms Tareena Martin. This second affidavit of service in matter MLG1821/2021 was also made on 26 April 2023, and was marked by me as exhibit R2 in this proceeding. Ms Martin’s affidavit annexed to it the court book and an outline of the respondent’s submissions.
In those circumstances, I am satisfied that the applicants were on notice of this morning’s hearing.
In those circumstances I will also make an order in this matter pursuant to r. 13.06(1)(c) dismissing the application in the absence of the applicants, given their non-appearance at the hearing. I will make an order for costs in favour of the first respondent in the amount of $6,500, noting that this is less than the scale costs for a proceeding concluded at a final hearing. A lesser costs order is appropriate by reason of the close interconnection between this matter and the earlier matter.
Again, for completeness, I note that it is open to the applicants to apply to set aside a judgment order made in their absence, pursuant to r. 17.05(2) of the rules.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Champion. Associate:
Dated: 3 May 2023
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