CDQ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 13
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDQ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 13
File number(s): SYG 1685 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 28 January 2025 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) s 65, s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.05, r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 17 December 2024 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Mr S Knuckey of Mills Oakley ORDERS
SYG 1685 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application 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 fixed in the sum of $5,400.
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 ZIPSER
INTRODUCTION
On 4 July 2019, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
The applicant did not attend the hearing in this Court listed on 17 December 2024. For the reasons that follow, the application to this Court 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) (Rules).
FACTUAL BACKGROUND
The applicant, a Bangladeshi citizen, first arrived in Australia in August 2015 on a visitor (subclass 600) visa.
On 30 September 2015, the applicant lodged an application for a protection visa. He claimed he was homosexual and feared returning to Bangladesh because of his sexual orientation.
On 4 March 2016, the applicant attended an interview with a delegate of the first respondent.
On 19 August 2016, the delegate refused to grant the applicant a protection visa on the basis that, among other things, his claims lacked credibility.
On 8 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 3 June 2019, the applicant attended a hearing before the Tribunal.
On 18 June 2019, the Tribunal made a decision affirming the delegate’s refusal decision. The Tribunal, among other matters, did not find the applicant to be a truthful or credible witness.
PROCEEDINGS IN THIS COURT
Application for judicial review
On 4 July 2019, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. The application was prepared by a lawyer. The single ground advanced in the application is as follows (as written):
1.The Tribunal made a jurisdictional error of legal unreasonableness in relation to the Applicant’s engagement with the gay community.
a.At paragraph 58 of its decision, the Tribunal found that there was no credible evidence before it suggesting that the Applicant had made any real attempt to engage with the broader gay community or to establish a relationship with any other gay man;
b.At paragraph 60 of its decision, the Tribunal found that the Applicant did not engage with the gay community beyond attending a parade and having his photograph taken with people with whom he had no further contact;
c.At paragraph 61 of its decision, the Tribunal found it was not satisfied that the Applicant had attended any gay clubs or venues since arriving in Australia or that he attended Mardi Gras or any other event in order to associate or celebrate with other gay men.
d.It was arbitrary and there was no evident and intelligible justification for the Authority to impose this standard of conduct upon the Applicant: BWC16 v Minister for Home Affairs [2018] FCA 375 at [59].
On 24 July 2019, a registrar made orders by consent, that, upon the matter being listed for hearing, the applicant file and serve a written submission 28 days before the hearing.
Following a period of inactivity, on 16 October 2024 the parties were notified by email that the matter was listed for final hearing on 17 December 2024. The email included the time and location of the hearing.
On 13 November 2024, the applicant’s solicitor on the record filed a notice of withdrawal as a lawyer (Withdrawal Notice). The Withdrawal Notice provided two email addresses for the applicant which the solicitor stated were the last known email addresses of the applicant (Two Email Addresses).
On 13 December 2024, the Court sent an email to the parties, including to the applicant at the Two Email Addresses, reminding the parties that the matter was listed for final hearing on 17 December 2024. The email included the time and location of the hearing.
By the date of the hearing, the applicant had not filed a written submission or any further documentation.
Hearing on 17 December 2024
The hearing on 17 December 2024 commenced at 10:25 am and concluded at 10:40 am. The applicant did not appear at the hearing. The matter was called outside the court room twice between 10:15 am and 10:30 am. In this period, my associate tried to phone the applicant on a mobile phone number for the applicant provided by the applicant’s solicitor in an attachment to the Withdrawal Notice.
Simon Knuckey from Mills Oakley appeared for the first respondent. He requested that the matter be dismissed pursuant to r 13.06(1)(c) of the Rules. Mr Knuckey provided to my chambers after the hearing an email from Mills Oakley dated 27 November 2024, sent to the applicant at one of the Two Email Addresses, which reminded the applicant of the time and location of the hearing.
The Court is satisfied the applicant was notified of the hearing date – by an email from the Court to the applicant’s solicitor on the record at the time on 16 October 2024, by an email from the Court to the applicant on 13 December 2024, and by an email from Mills Oakley to the applicant on 27 November 2024.
In the above circumstances, the Court accedes to the request by the first respondent to dismiss the matter pursuant to r 13.06(1)(c) of the Rules.
If the applicant is genuinely aggrieved that his application has been dismissed in his absence, pursuant to r 17.05 of the Rules, he may apply to set aside the dismissal order. If he decides to file an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining why he did not attend the hearing on 17 December 2024. He should also explain in the affidavit:
(a)whether he received from his former solicitor the Withdrawal Notice and an earlier notice of intention to withdraw as a lawyer dated 1 November 2024;
(b)whether either or both of the Two Email Addresses were his email addresses in November and December 2024 and, if not, at any earlier time; and
(c)whether the phone number in the notice of intention to withdraw as a lawyer was his phone number in November and December 2024 and, if not, at any earlier time.
If the applicant does not provide a satisfactory explanation in an affidavit as to why he did not attend the hearing on 17 December 2024, a question may arise as to whether his conduct involves an abuse of process of this Court.
If the applicant decides to file an application under r 17.05:
(a)He should also file an accompanying written submission which seeks to persuade the Court why there is a jurisdictional error in the Tribunal’s decision dated 18 June 2019. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, there appears to be no utility for the applicant in filing an application under r 17.05.
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Mr Knuckey sought an order that the applicant pay the first respondent’s costs in the amount of $5,400. This amount appears fair and reasonable. The Court will make a costs order in this amount.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated:
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