CCV23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1296
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCV23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1296
File number(s): SYG 1350 of 2023 Judgment of: JUDGE DOUST Date of judgment: 14 November 2024 Catchwords: MIGRATION – extension of time application – dismissal of interlocutory application where applicant in default – non-attendance at hearing of extension of time application. Legislation: Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06
Division: General Federal Law Number of paragraphs: 13 Date of hearing: 14 November 2024 Place: Sydney Counsel for the Applicant: No appearance Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1350 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCV23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The interlocutory application in the application filed on 24 August 2023 be dismissed pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and the application filed on 24 August 2023 be dismissed pursuant to r 13.06(1)(c) of the Rules.
3.The first respondent to serve upon the applicant a copy of the r 17.05 of the Rules when he serves the orders made today upon the applicant.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings in the amount $4,189.38.
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 transcript)JUDGE DOUST
By an Application to show cause lodged with this Court on 23 August 2023 and filed on 24 August 2023, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 June 2022 and notified to the applicant by email on 3 June 2022 (Application). The Tribunal determined that it had no jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a Protection visa. That application was made more than a year after the elapse of the 35-day period for the making of such an application prescribed in s 477(1) of the Migration Act 1958 (Cth) (Act). Accordingly, the applicant asked this Court to exercise its discretion pursuant to s 477(2) Act to extend the time for the filing of his application (EOT Application). The application was accompanied by an Affidavit of the applicant affirmed 22 August 2023 (Affidavit).
The applicant recited in the Affidavit that he had delayed his appeal to this Court because he did not know the procedure and the time limit for appeal. When the Court returned sealed copies of the filed documents to the applicant by email, it also provided him a “Next Steps” document that advised him that he must serve the Application and Affidavit on the first respondent and then advised that orders would be made by the Court setting a timetable. The “Next Steps” document contained the following content (emphasis in original and added):
Step 4 – Hearing
The Court will notify you when your matter is listed for a hearing. Usually, this will be for the Final Hearing, where you will have the opportunity to make arguments to a Judge of the Court about the errors you say were made in the migration decision that you are asking the Court to review.
However, some matters may be listed for other reasons. You will be advised of the reason for the listing when you are notified that your matter has been listed for a hearing.
You must attend in person for any hearing before a Judge in your matter unless the Court tells you that your attendance is not required. If you fail to attend a hearing, your matter may be dismissed for non-appearance, and you may be ordered to pay the Respondent’s legal costs.
On 7 May 2024, a Registrar of this Court made orders that the matter be listed for hearing of the EOT Application on a date to be advised (May Orders). He ordered the first respondent to file and serve a bundle of relevant documents (Court Book). The Registrar also made orders for the applicant to file and serve any amended application, evidence and written submissions at least 28 days before the hearing. The May Orders also provided for the first respondent to file and serve any evidence it wished to rely on and written submissions by 14 days prior to the hearing.
I am satisfied that those Orders were provided to the applicant by the Registry of this Court on that day (that is, on 7 May 2024) under cover of an email from the Court to the applicant at the email address of the applicant which appears at the bottom of the Application.
On 8 August 2024, a Registrar of this Court held a telephone callover of the matter at which the applicant appeared by telephone. The Registrar made orders vacating some of the May Orders and made new orders for the applicant to file and serve any amended application, giving proper particulars of the grounds of the application, any Affidavit evidence and written submissions by 21 August 2024 (August Orders).
The August Orders also provided for the first respondent to file and serve any Affidavit evidence and written submissions by 4 September 2024, and listed proceedings for interlocutory hearing of the EOT Application and, if granted, a final hearing of the Application on a date to be advised. No date for the hearing of the EOT Application was specified in the August Orders, but in the minute of those orders, the Registrar entered a notation that the applicant confirmed that he had received the Court Book, and noted that the parties had been put on notice that the matter may be listed for hearing as soon as in early September 2024.
I am satisfied that the August Orders were provided to the applicant on 9 August 2024 by the Registry of this Court under cover of an email from the Court to the applicant at the email address of the applicant which appears on the application. In the event, the applicant did not file with this Court any amended application, any further Affidavit evidence or any written submissions, nor has he made any approach to this Court to seek any variation of the existing orders. On Friday, 25 October 2024, the Court emailed the parties advising the matter had been listed for hearing of the EOT Application before me on 6 November 2024.
On Monday, 4 November 2024, the Court emailed the parties advising that the EOT Application had been relisted for hearing before me on 14 November 2024. I have also received into evidence and marked as Exhibit “R1” an email, sent by lawyers for the first respondent to the applicant, to the email address which appears on the bottom of the applicant’s Application. That email attaches a letter dated 7 November 2024. The letter advises the applicant that the matter is listed for an interlocutory hearing at court 13.2 at the address of this Court on 14 November 2024, at 10.15am (AEDT), before me. The letter encloses a copy of this Court's email dated 4 November 2024, and also contains the following statement:
If you do not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions of rule 13.06(1) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) with costs.
As at the time of commencing the hearing, the Court had not received any communication from the applicant about his intention in relation to attending the hearing today or about the matter otherwise. At the time of delivery of judgment, it was 10.58am, and the applicant was still not present in the Court. The matter was first called outside the court room at about 10.15am and then again at about 10.40am. I am satisfied that the applicant was notified of today's hearing date by the Court at the email address he nominated on his application. I am further satisfied that the non-attendance has occurred in circumstances where the applicant was put on notice by this Court early in the piece by its “Next Steps” document that it was imperative for him to attend any hearing, and that he was also put on notice as to the prospect that the matter may be dismissed in the event of his non-appearance at any such hearing.
I am also satisfied further to that notification by this Court early in the piece that the first respondent’s representatives communicated with the applicant in a fashion that would have made it clear to the applicant that the matter was listed today for the interlocutory hearing of the EOT Application and that in the event of his non-attendance, the Minister may apply to have the matter dismissed for non-appearance.
The applicant has been afforded a fair opportunity to be heard by the Court on his application to extend time. He has not taken the opportunity to advance his application by filing any Affidavit or written submissions, nor by appearing in person to give evidence or argue his case. He has not sought to explain his absence by any communication with either the Court or the first respondent’s representatives.
In all of the abovementioned circumstances, I have decided to dismiss the EOT Application pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules) and, as a consequence, the Application pursuant to r 13.06 (1)(c) of the Rules.
After delivery of these reasons, the first respondent made an application for an order for costs and disbursements in the sum of $4,189.38 (the scale amount). I am satisfied that it is an appropriate sum in all the circumstances, and I will so order.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 26 November 2024
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