CFI22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 351
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CFI22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 351
File number: PEG 124 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 28 April 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – no appearance by or for the applicant – application dismissed 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). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 28 April 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 124 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFI22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
28 April 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application 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).
3.The applicant pay the first respondent’s costs fixed in the sum of $3,737.
4.Written reasons for judgment to be published from Chambers at a later date.
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 KENDALL:
INTRODUCTION
This matter was listed before the Court for a hearing of an application for an extension of time at 2.30pm on 28 January 2023. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application 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).
3. The applicant pay the first respondent’s costs fixed in the sum of $3,737.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 above. They explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”).
BACKGROUND
Before the Court is an application for judicial review filed in the Perth Registry of this Court on 28 June 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 27 June 2022 and filed on 28 June 2022.
The application seeks review of a Confirmation Decision made by the Administrative Appeals Tribunal on 4 January 2022. As per s 477 of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 8 February 2022). The application filed by the applicant was thus filed 140 days outside of the requisite timeframe.
On 2 September 2022, orders were made by Registrar Carney in this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 28 September 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing at 11.00am on 28 April 2023.
On 20 April 2023, the parties were reminded of the date, time and location of the hearing. They were also provided instructions for an “in person” attendance at the Court.
On 27 April 2023, the parties were notified of a change to the hearing start time (from 11.00am to 2.30pm). The parties were also told that the hearing arrangements otherwise remained unchanged.
As outlined above, when the matter came before this Court (on 28 April 2023), there was no appearance by or for the applicant. Ms Grace Mickle (“Ms Mickle”) appeared at the hearing on behalf of the Minister. The matter was called three times but, as noted above, the applicant still did not appear.
At the hearing, Ms Mickle sought to rely on the affidavit of service of Ms Elizabeth Grace Bennett deposed on 18 April 2023 and filed on 19 April 2023 (the “Bennett affidavit”). The material annexed to the affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. Ms Mickle also sought to rely on additional correspondence from her office to the applicant sent earlier that day (on 28 April 2023) reminding the applicant of the listing (including the changed hearing start time) and again advising him that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
Correspondence from my chambers (as set out above) was tendered and referenced as Exhibit 1.
Correspondence from Minter Ellison to the applicant on the day of the hearing (as outlined above) was tendered and referenced as Exhibit 2.
The Bennett affidavit was taken as read and in evidence at the hearing.
The Court asked Ms Mickle how the Minister wished to proceed in the circumstances.
Ms Mickle advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $3,737.
Noting the correspondence contained in Exhibits 1 and 2 and the Bennett affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time and also advised of how he could appear at that hearing.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Mickle was prepared to make oral submissions as required in relation to the application for an extension of time.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 May 2023
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