BSU22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 317
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 317
File number: PEG 97 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 26 April 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – first scheduled hearing adjourned at the applicant’s request – matter re-listed for hearing – no appearance by or for the applicant at the re-listed hearing – 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), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 26 April 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 97 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSU22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
26 APRIL 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.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).
3.The applicant pay the first respondent’s costs, fixed in the sum of $5,400.
4.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 final hearing at 12.30pm on 26 April 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.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.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).
3. The applicant pay the first respondent’s costs, fixed in the sum of $5,400.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 16 May 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 13 May 2022 (and filed in this Court on 16 May 2022).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 3 May 2022. In that decision, the Tribunal determined that it did not have jurisdiction in the matter.
On 29 July 2022, orders were made by Registrar Carney of this Court programming the matter to a final hearing “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 hearing before this Court at 11.00am on 29 March 2023.
On 27 March 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court.
At 10.28am on the morning of the hearing (29 March 2023), an email was sent to my chambers by Ms Centaine Mumford (“Ms Mumford”), solicitor for the first respondent (the “Minister”). That email correspondence stated:
We refer to the matter above and hearing listed before his Honour for this morning, at 11:00 am AWST.
I have just received a phone call from a person purporting to be interpreting for the applicant as he does not speak English. The interpreter has advised that the applicant has been in a car accident and will not be attending this morning’s hearing.
In the absence of any evidence or formal application for an adjournment, our instructions are to proceed with the hearing as listed.
My chambers was also advised by the Court’s Registry staff that the applicant had contacted the Registry and provided similar information in relation to having been in a car accident. The Registry staff advised the applicant that he would need to write to my chambers and seek an adjournment or attend the hearing. The applicant told the Registry staff that he would do so, but would need some assistance as he had limited English proficiency.
When the matter came before the Court at 11.00am (on 29 March 2023), there was no appearance by or for the applicant. Ms Mumford appeared at the hearing on behalf of the Minister.
Ms Mumford told the Court that her instructions were to oppose the adjournment request. In the circumstances, given that the applicant was self-represented and had attempted to contact both the Court and the Minister’s representative, the Court determined that it would be more appropriate to grant a short adjournment for four weeks. The matter was re-listed to 26 April 2023 at 12.30pm.
Following the first scheduled hearing (on 29 March 2023), my chambers emailed the parties a re-listing notice which confirmed that the matter had been re-listed to 26 April 2023 at 12.30pm.
The applicant also emailed the Perth Registry later in the day (on 29 March 2023) stating:
Due to getting into a car accident, I am unable to attend the hearing today at 11am. Could the hearing please be adjourned to a later date.
Sorry for the late response as I had to get a friend to translate this email for me, english is not my first language.
On 3 April 2023, my chambers responded to the applicant notifying him of the adjournment and providing a copy of the re-listing notice sent to the parties on 29 March 2023. That email correspondence advised the applicant that “[a]ny further adjournment request [would] need to be made before the [rescheduled] hearing (on 26 April 2023) by filing an application in a proceeding with the Court”. The applicant was also advised that “[a]ny further request should also be accompanied by detailed supporting evidence” and he was given a link to the relevant forms on the Court’s website.
On 20 April 2023, the parties were reminded of the date, time and location of the rescheduled hearing. They were also provided with instructions for an “in person” attendance at the Court.
As outlined above, when the matter came before this Court for the second time (on 26 April 2023), there was no appearance by or for the applicant. Ms Mumford again appeared on behalf of the Minister. Although an interpreter had not been requested, an interpreter was made available as the applicant had advised the Court in his previous correspondence that he had limited English proficiency.
The affidavit of service of Ms Jessica Tran (affirmed on 17 March 2023 and filed in this Court on 20 March 2023) (the “Tran affidavit”) was taken as read and in evidence. Ms Mumford also took the Court through correspondence from her office outlining service of various documents (as annexed to the Tran affidavit).
Correspondence from Ms Mumford (annexing the adjournment and re-listing correspondence as outlined above) was tendered and referenced as Exhibit 1.
The Court asked Ms Mumford how the Minister wished to proceed.
Ms Mumford 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 $5,400.
Noting the correspondence contained in the Tran affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the rescheduled hearing date and time. He was also properly advised of how he could appear at that rescheduled 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 Mumford 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 his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 April 2023
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