BSS23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 93
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSS23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 93
File number: PEG 131 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 6 February 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 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) and 17.05(2)(a)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 6 February 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr T Lettenmaier Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 131 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSS23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
3.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 before the Court for a hearing of the application for an extension of time at 12.00pm on 6 February 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.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).
2. The applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
3. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 7 July 2023 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 6 July 2023 (and filed in this Court on 7 July 2023).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 28 March 2023. As per s 477(1) 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 2 May 2023). The application filed by the applicant in this matter was thus filed 66 days outside of the requisite time period.
On 30 August 2023, orders were made by Registrar Downing of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 5 September 2023, 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 12.00pm on 6 February 2024.
On 2 February 2024, the parties were reminded of the date and time of the hearing. They were also provided with instructions in relation to an “in person” hearing at the Perth Registry of the Court.
As outlined above, when the matter came before this Court (on 6 February 2024), there was no appearance by or on behalf of the applicant. Mr Tom Lettenmaier of counsel (“Mr Lettenmaier”) appeared at the extension of time hearing on behalf of the first respondent (the “Minister”).
The Court asked Mr Lettenmaier how the Minister wished to proceed in the circumstances.
Mr Lettenmaier 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 $4,189.38.
In support of that request, Mr Lettenmaier sought to rely on the affidavit of Ms Grace Mickle (deposed on 2 February 2024 and filed on 5 February 2024 (the “Mickle affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
Correspondence from my chambers to the parties (as set out above) was tendered and referenced as Exhibit 1.
The Mickle affidavit was taken as read and in evidence at the hearing.
Noting the correspondence contained in Exhibit 1 and the Mickle affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was 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 Mr Lettenmaier was prepared to make oral submissions, as required, in relation to the application for an extension of time.
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 applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 February 2024
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