BWV20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 842
•4 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWV20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 842
File number(s): ADG 164 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 4 September 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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: 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: 17 Date of last submission/s: 31 July 2024 Date of hearing: 4 September 2024 Place: Adelaide Applicant: No appearance for or on behalf of the applicant Counsel for the First Respondent: Charlotte Saunders Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 164 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWV20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 4 May 2020 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).
3.The applicant pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the sum of $5,900.
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 GERRARD:
INTRODUCTION
This matter was listed for a final hearing before the Court by Microsoft Teams at 10.00am on 9 September 2024. When the matter commenced, there was no appearance by or on behalf of the applicant either online or in person.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 4 May 2020 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).
3.The applicant pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the sum of $5,900.
These reasons 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 Adelaide Registry of this court on 4 May 2020 (the application). That application was accompanied by an affidavit which was deposed by the applicant on that same day.
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 14 April 2020. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 9 May 2024, the applicant appeared via telephone at a callover hearing before Registrar Cummings. At that callover hearing, Registrar Cummings made orders programming the matter to a “final hearing on a date to be advised”.
On 9 August 2024, the parties were sent a listing notice (via email) advising them that the matter had been listed for a final hearing before this Court at 10.00am on 4 September 2024. The parties were advised that the hearing would require “in person” attendance at the Court.
On 2 September 2024, the parties were granted leave to appear electronically via Microsoft Teams at the final hearing. The applicant was reminded by email from the Court that if they do not attend the hearing, the application may be dismissed for non-appearance.
When the matter came before the Court the applicant did not join the Microsoft Teams meeting. Ms Saunders appeared via Microsoft Teams on behalf of the Minister. My associate made two unsuccessful attempts to contact the applicant via the telephone number in the footer of their application for judicial review. The matter was then called three times outside the courtroom but, as outlined above, the applicant did not appear.
In those circumstances, counsel for the Minister applied to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Counsel also sought the Minister’s costs, fixed in the sum of $5,900.
In support of that application, Ms Saunders sought to rely on the affidavit of Lily Joelle Butterfield (affirmed on 23 August 2024 and filed with the Court on 26 August 2024) (the Butterfield 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 a scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs (Annexure LB04 to the Butterfield affidavit).
The Butterfield affidavit was taken as read and in evidence.
Noting the correspondence from the Court and the Minister’s lawyers, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also properly advised of how he could appear at that hearing remotely and the possible costs consequences of non-appearance.
In light of the enquiries made, the Court was satisfied that the applicant did not appear at the final hearing of this matter.
In respect of the costs order sought on behalf of the Minister, the Court was satisfied that the amount sought was appropriate in the circumstances, noting that it is below the scale amount for a proceeding concluded at a final hearing as set out in Schedule 2, Part 2, Division 1 of the Rules. The Minister effectively was required to prepare for a final hearing. The Minister had filed a Court Book and written submissions, and Ms Saunders was prepared to make oral submissions.
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 seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 6 September 2024
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