CEP20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 795
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CEP20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 795
File number(s): MLG 2600 of 2019 Judgment of: JUDGE MANSINI Date of judgment: 27 August 2024 Catchwords: MIGRATION – reasons for judgment delivered ex tempore – judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision to cancel the Applicant’s bridging visa – application is dismissed with costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General FederalLaw) Rules 2021 (Cth) r.13.06) Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 26 August 2024 Place: Melbourne For the Applicant No appearance Counsel for the Respondents: Mr Hosking Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2600 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEP20
Applicant
AND: MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Multicultural Affairs.
2.The application filed on 12 August 2019 is dismissed pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General FederalLaw) Rules 2021 (Cth) (Rules).
3.By 4.00 pm on 28 August 2024, the First Respondent is to serve upon the Applicant a copy of these orders, together with a copy of rule 17.05(2)(a).
4.The Applicant pay the First Respondent’s costs of the proceeding 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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)Judge Mansini
These are the reasons for judgement delivered ex tempore on 26 August 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
IN SUMMARY
By an originating application filed on 12 August 2019 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal of 18 July 2019, by which the Tribunal had affirmed a delegate’s decision to cancel the Applicant’s bridging visa.
At final hearing convened at 10.00am on 26 August 2024:
(a)There being no appearance by the Applicant’s representative (a firm on the record since a notice of address for service was filed on 23 June 2022) or the Applicant; and
(b)There being an appearance by Counsel on behalf of the First Respondent,
the First Respondent makes oral application for the matter to be dismissed for non-appearance by exercise of the power at r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The First Respondent’s application to dismiss
The First Respondent acknowledged that the Applicant’s representative has sent an email to the Court at 8.37am on this day (26 August 2024) which was characterised as seeking an adjournment. By that email, a person by the name of “Caroline K.” communicating from the email address of the firm on the record as the Applicant’s representative said:
Dear All
The acting solicitor is admitted in hospital for unforeseen matters undergoing treatment as indicated. There is no physical possibility for her to attend physical in this condition.
The applicant has advised he seeks for us to continue to act and will attend our office on 12 September 2024 to provide proper instructions so we can prepare for the final hearing as part of procedural fairness to him the applicant.
We do not see any prejudice being suffered to the respondent due to the request for an adjournment which we would think be not before 10 October 2024 so we have time to file and respond accordingly. Naturally costs follow the cause and we could ask it be reserved for today.
Please place this on the court file and all parties.
If an appearance is necessary please advise urgently as we need to facilitate with the hospital a link for the solicitor to appear to advise the court the same.
We humbly given the unforseen circumstances and out of procedural fairness, so no prejudice to the respondent for the adjournment which is appropriate and necessary in the circumstances.
Please acknowlege by email.
Should you have any questions, please do not hesitate to contact us.
(sic.)
The First Respondent submitted to the Court that it was not appropriate to grant an adjournment in the circumstances of the case and, in support of that submission, handed up an affidavit made by the instructing solicitor to the First Respondent on that day marked as “R1” in these proceedings.
Exhibited to the affidavit comprising “R1” was a series of correspondence which the Court was taken to (summarised below):
(a)An email sent on behalf of the First Respondent on 20 March 2023 which attached proposed draft consent orders as to programming, prepared by the First Respondent - to which no response was received;
(b)An email sent on behalf of the First Respondent on 16 May 2023 which identified grounds on which the application was said to be incompetent and futile and proposed an offer to the Applicant - to which no response was received;
(c)Orders of the Court dated 21 May 2024, which listed the matter for hearing at 10.00am on 26 August 2024; and required the Applicant to file any amended application and an outline of written submissions and any affidavit evidence by no later than 4.00pm on 5 August 2024; and included liberty to apply in relation to that order;
(d)An email sent on behalf of the First Respondent on 6 August 2024, following the failure to file any material in response to the Court’s timetabling orders which included a reminder about the Court’s filing dates and again requested a response to the correspondence of 16 May 2023;
(e)Also on 6 August 2024, a response from the Applicant’s solicitors which said that (at that time):
We are awaiting funds from the client and unable to do much else at this point. The matter may need to be adjourned in order for the Applicant to raise funds for us to prepare the relevant documents.
Should you have any questions, please do not hesitate to contact us.
No application was made for any adjournment at that time (6 August 2024) or at any time before 8.37am on 26 August 2024; no explanation was given to the Court as to why nothing had been filed.
In those circumstances, the First Respondent submitted it was appropriate to refuse the adjournment and dismiss the matter for non-appearance.
Consideration of the dismissal application
At the outset, it is noted that the Court’s records do not disclose any communication with Registry or chambers making an application for an extension of the program of dates for filing of materials or an adjournment of the proceedings prior to the email received at 8.37am on the day of the hearing.
Having reviewed the history of the matter, the Applicant’s non-compliance with the Court’s orders of 21 May 2024 has occurred notwithstanding that it appears that the firm of solicitors on the record for the Applicant is clearly in receipt of those orders and aware of the dates for compliance with those orders. The Applicant’s representative has done so notwithstanding the efforts of the First Respondent to communicate with them about that non-compliance.
Further, the Applicant’s non-compliance with the Court’s orders of 21 May 2024 has occurred notwithstanding that the Applicant’s representative has (some weeks ago) foreshadowed in communication with the First Respondent’s representative the potential to seek an adjournment (on account of the state of preparation of the case, being a different reason to that put to the Court by email on this day). But, in any event, never made such application to the Court before today.
As the First Respondent has submitted, this is not a case where there has been evidence of efforts made by the Applicant and his representatives to prepare the case for hearing and then some last minute unavoidable circumstance meant it was not possible for a representative to appear on the day of the hearing.
And in all of those circumstances, I do consider it appropriate to dismiss the matter pursuant to r.13.06(1)(c) of the Rules in the absence of the Applicant and in default of an appearance on behalf of the Applicant today. I do so in the knowledge that there may be an application made for reinstatement of the proceedings and there will be orders that the First Respondent’s representatives serve a copy of that rule on the Applicant.
On application of the First Respondent, the Court will also make orders that the Minister’s name be amended to “Minister for Immigration and Multicultural Affairs” and that the Applicant pay the First Respondent’s costs in the amount of $5,400 being less than the scale at Schedule 2 of the Court’s Rules for final hearing.
Resolution
The application is dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 27 August 2024
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