CEI19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1127
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEI19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1127
File number(s): SYG 1326 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 1 November 2024 Catchwords: MIGRATION – Judicial review – application for an extension of time – applicant sought review of delegate’s decision which had previously been the subject of review by the Tribunal -dismissal for non-appearance 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
Cases cited: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 87 FCR 301
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 1 November 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms G Gutmann of MinterEllison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1326 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEI19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application for an extension of time and the proceedings are 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).
2.The Applicant pay the First Respondent’s costs fixed in the amount of $4,189.
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 Kaur-Bains
The applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act), in which to apply for judicial review of a decision of the second respondent (Tribunal) dated 2 April 2019. Pursuant to s 477(1) of the Act, an application for judicial review was required to be filed 35 days after the date of the migration decision. The migration decision is taken to have been made on 2 April 2019. The application for an extension of time was filed on 30 May 2019. Thus, the application for judicial review is approximately 23 days out of time.
BACKGROUND
Protection Visa Claims
The applicant is a citizen of Malaysia who arrived in Australia on 27 June 2015 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa (CB 44). On 20 August 2015, the applicant applied for a Protection (Class XA) (subclass 866) visa (visa) (CB 1).
The applicant’s protection visa claims can be summarised primarily as a fear of gang violence, due to gang activity occurring in the food shop he worked at in Malaysia (CB 19-20). The applicant claims to face serious harm personally in the form of death threats as well as concerns as to the safety of his family members in Malaysia, and destruction of property owned by the applicant.
Delegate’s Decision
On 21 January 2016, a delegate of the first respondent (Minister) refused to grant the applicant a visa (CB 44–56).
The applicant sought review of the delegate's decision before the Tribunal.
TRIBUNAL’S DECISION
On 16 September 2016, the Tribunal made a decision, affirming the decision not to grant the applicant a protection visa (CB 87–92).
On 5 March 2019, the applicant lodged a further application for review of the same delegate's decision before the Tribunal (CB 58). On 13 March 2019, the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review (CB 94). The applicant did not respond to this letter.
On 2 April 2019, the Tribunal determined that it had no jurisdiction to review the decision (CB 101).
The Tribunal recorded that an application for review of the same delegate's decision was previously made to the Tribunal, and that the Tribunal made a decision on that application on 16 September 2016. The Tribunal found that, where it had received a valid application for review of a reviewable decision and had reviewed that decision under the Act, the decision was no longer a reviewable decision: SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41] ; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 87 FCR 301; [1997] FCA 551 and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 (at [3] of the reasons).
PROCEDURAL HISTORY
On 30 May 2019 the applicant filed an application for judicial review to this Court and supporting affidavit seeking an extension of time and judicial review of the Tribunal decision. The applicant listed the same street address for service, email address and telephone number in both the application and the supporting affidavit affirmed on 30 May 2019.
On 20 June 2019 Registrar Cho issued standard timetabling orders in this matter for a hearing date to be advised to the parties at a future date. The matter was listed for Callover before Registrar Foster on 23 July 2024.
At the Callover on 23 July 2024 the applicant appeared by telephone assisted by a Mandarin interpreter. In the order made, it was noted that the applicant was to file and serve an updated Address for Service with his new telephone contact number. To date, no Notice of Address has been filed by the applicant, changing his contact details. Parties were also put on notice that the matter would be listed for hearing as soon as late August 2024.
A Notice of Listing was sent by email on 24 September 2024 notifying both parties of the date, time and location of the hearing. The email was sent to the address the applicant had nominated, notifying him that the Extension of Time Hearing was listed for Friday 1 November 2024 at 10:15am in person at the William Street Registry.
On 29 October 2024 Mr Djasmeini filed an Affidavit of Service on behalf of the Minister, affirmed on the same date, evidencing service of the following:
(a)On 11 July 2019 sealed copies of the Court Book sent to the applicant’s nominated email address and to his nominated postal address.
(b)On 20 August 2024 a sealed copy of the Minister’s Written Submissions by email to the applicant’s nominated email address.
(c)On 25 October 2024 a sealed copy of the List of Authorities together with the bundle of Authorities sent to the applicant’s nominated email address and to his nominated postal address.
On 30 October 2024, the Minister’s representative sent an email to the applicant to his nominated email address confirming the hearing details for today.
At 10:35am of the morning of the hearing, there was no appearance by or on behalf of the applicant in Court. The matter was called 3 times outside of the Courtroom, with no appearance from the applicant. As a result of the non-appearance at the hearing by the applicant, the Minister made an application that the proceedings 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) (Rules).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
CONSIDERATION
In light of the contents of the Affidavit of Service of Mr Djasmeini filed 29 October 2024 and the email dated 24 September 2024 referred to in [14] of this judgment, I am satisfied the applicant had sufficient notice of the Extension of Time Hearing. Therefore, the application for extension of time and the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the applicant pay the Minister’s costs fixed in the amount of $4,189. I am satisfied this is an appropriate amount in the circumstances and order the applicant pay the Minister’s costs fixed in the amount of $4,189.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 1 November 2024
0
4
2