BZX19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1021
Federal Circuit and Family Court of Australia
(DIVISION 2)
BZX19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1021
File number(s): ADG 179 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 2 December 2022 Catchwords: MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – application for temporary protection visa
PRACTICE AND PROCEDURE – Adjournment of directions hearing - where no appearance by applicant – where respondent seeks dismissal for non-appearance – where applicant has no active contact details and did not file a Notice of Address for Service – where applicant was contacted by email on an email address not advised by applicant – where applicant has been sent postal correspondence and postal correspondence has been returned to sender – where phone number on electronic court file is disconnected – where applicant has been advised by email and postal correspondence of directions hearing – where repeat attempts to contact applicant unsuccessful
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of last submission/s: 2 December 2022 Date of hearing: 2 December 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Ms G Ellis by CISCO Webex Solicitor for the First Respondent: Sparke Helmore Counsel for the Respondents: Submitting appearance, save as to costs ORDERS
ADG 179 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZX19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
2 DECEMBER 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read "Minister for Immigration, Citizenship and Multicultural Affairs".
2.The originating application filed 16 May 2019 be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The Applicant pay the First Respondent’s costs in the sum of $3,500 by 2 January 2023.
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
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
This is an application (“Judicial Review Application”) for a Subclass 785 Temporary Protection Visa (“Protection Visa”), filed in the Adelaide Registry of the Court on 16 May 2019. The Judicial Review Application, save for alleging that the Immigration Assessment Authority made a jurisdictional error, is otherwise bare of any relevant particularisation. The response which was filed indicates that the now Minister for Immigration, Citizenship and Multicultural Affairs, formerly the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), takes the view that there is no jurisdictional error established by the Judicial Review Application as filed and no arguable case for relief in any event.
The matter was the subject of orders of Registrar Colbran in the Adelaide Registry of the Court on 21 June 2019, and those orders programmed the matter for the filing of all of the usual documents for a migration judicial review hearing of this type, and also listed the matter for a directions hearing on 12 June 2020. On 6 January 2020 the parties were advised via email from the Adelaide Registry that the directions hearing listed for 12 June 2020 was vacated and the proceeding was to be adjourned to a date to be fixed.
In respect of that notification, the Court notes that advice was sent to the parties and, seemingly, to the Applicant at an email address (“Applicant’s Email”), but the Applicant’s Email was not on the originating application as an address for service, not the subject of any other separately filed Notice of Address for Service and not otherwise noted or referred to in the Court’s Electronic Court File records.
The matter rested there for some time until, in October of 2022, the matter was docketed to the Court as presently constituted out of the Perth Registry of the Court. On 12 October 2022, the Court wrote to the parties, advising that the matter was listed for a directions hearing on 23 November 2022 (“Directions Hearing”) in-person in Adelaide. So far as the Applicant was concerned, that correspondence was sent to the address for service on the originating application, which was a street address in Plympton in South Australia (“Plympton Address”), and that correspondence was returned to the Adelaide Registry of the Court unopened. On the day of the Directions Hearing, it was drawn to the attention of the Court as presently constituted that there was the above described email correspondence from the Adelaide Registry of the Court to the Applicant at the Applicant’s Email (“January 2020 Correspondence”).
The notice of listing for the Directions Hearing had not been sent to the Applicant’s Email, but there was no obligation to do so, given that it was not the subject of an address for service on the originating application and no subsequent Notice of Address for Service had been filed, and as the Court has earlier indicated, there is no indication as to how it is that the Applicant’s Email came to be an email address utilised for the purposes of the January 2020 Correspondence. The Applicant’s Email having been drawn to the Court’s attention on the day of the Directions Hearing and out of an abundance of caution, the Court adjourned the Directions Hearing, having discussed the matter with counsel for the Minister, who appeared at that Directions Hearing, to a directions hearing today by video link from Perth (“November 2022 Orders”). On 24 November 2022 copies of the November 2022 Orders were sent by express post to the Applicant at the Plympton Address (“November 2022 Correspondence”), and on the same day, the November 2022 Correspondence, together with a copy of the earlier notice of listing for the matter, was sent to the Applicant’s Email.
Neither the November 2022 Correspondence sent to the Plympton Address nor the November 2022 Correspondence sent to the Applicant’s Email have elicited any response from the Applicant. In relation to today, the November 2022 Correspondence sent to the Applicant did indicate how it was that the Applicant was able to join the directions hearing today. As the Court has indicated, there has been no endeavour to join the directions hearing today by the Applicant, and as the Court has indicated, all of the means of possible contact with the Applicant have been exhausted, the correspondence to the Plympton Address in October 2022 being returned unopened, the November 2022 Correspondence sent as a consequence of the Directions Hearing eliciting no response, the November 2022 Correspondence similarly sent to the Applicant’s Email eliciting no response, and the Applicant’s mobile telephone number being advised as disconnected just prior to the Directions Hearing.
In those circumstances, the Court believes that sufficient and proper steps have been taken by the Court to endeavour to advise the Applicant of today’s directions hearing and, indeed, the Directions Hearing in Adelaide on 23 November 2022, and that having regard to the obligations of the Court in relation to litigation, under s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and bearing in mind the not inconsiderable pressures in relation to listing matters for hearing before this Court in relation to migration judicial review applications, it is appropriate to order, as the Minister has sought today, an order for dismissal 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).
The Minister also seeks costs in the sum of $3,500, and it is appropriate in the circumstance that the Minister have those costs
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 December 2022
0
0
0