CFS18 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 170

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CFS18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 170

File number:	MLG 1175 of 2018
Judgment of:	JUDGE LADHAMS
Date of judgment:	10 February 2025
Catchwords:	PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application 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)
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05
Division:	Division 2 General Federal Law
Number of paragraphs:	16
Date of hearing:	10 February 2025
Place:	Perth (via Microsoft Teams)
Applicant:	No appearance by or for the applicant
Counsel for the First Respondent:	Mr J Lessing
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Mills Oakley Lawyers

ORDERS

MLG 1175 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CFS18

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	10 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed pursuant to r 13.06(1)(c) the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).

2.The applicant is to pay the first respondent’s costs of the application, fixed in the amount of $6,700.

THE COURT NOTES THAT:

A.In circumstances where the application was dismissed in the absence of the applicant, the applicant may apply to the Court to set aside the orders above pursuant to r 17.05(2)(a) of the GFL Rules.

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
(Delivered ex tempore and revised from the transcript)

JUDGE LADHAMS:

1. The applicant’s judicial review application in relation to a decision of the Immigration Assessment Authority is listed before me today for mention. The applicant has failed to appear at the mention, and the Minister seeks an order that the judicial review application be dismissed pursuant to r 13.06(1)(c) the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).

2. For the reasons that follow, I am satisfied that it is appropriate to dismiss the applicant’s judicial review application pursuant to r 13.06(1)(c) of the GFL Rules.

3. I am satisfied that the applicant was appropriately notified of the listing for mention today.

4. The notice of listing for today’s mention needs to be considered in the context of a notice of listing for a final hearing sent to the parties on 29 October 2024 and advising them that the judicial review application was listed for hearing on 4 February 2025. That notice was sent to the applicant by email at the email address recorded in his application filed on 3 May 2018, and that is the most recent email address for service provided to the Court by the applicant. That notice clearly set out the time and date for the hearing and advised that the hearing would take place via Microsoft Teams.

5. A reminder email was sent to the applicant using the same email address on 28 January 2025, and that email also contained information as to how the applicant could join the hearing by Microsoft Teams.

6. The email sent on 29 October 2024 put the applicant on notice that if he failed to appear at the hearing, the application may be dismissed for non-appearance pursuant to r13.06(1)(c) of the GFL Rules.

7. The applicant failed to appear at the hearing on 4 February 2025. On that occasion, upon the Minister’s application, I considered dismissing the application for non-appearance, but decided to give the applicant one further opportunity to appear. Although I was satisfied that the applicant had been properly notified of the hearing and failed to appear without reasonable explanation, I decided to give the applicant one further opportunity to appear in the particular circumstances of the case. These circumstances included that the matter had not come before the Court for several years, with orders last being made by consent on 29 May 2019, and that the Minister’s submissions had not been served on the applicant until the evening before the hearing.

8. Rather than relisting the matter for final hearing today, I listed the matter for mention. This was to avoid the Minister having to incur the costs of preparing again for a full hearing in the event that the applicant did not appear and, in the event that the applicant did appear, to enable the Court to take further steps to afford the parties procedural fairness by making relevant explanations to the applicant and raising issues for the Minister’s consideration.

9. The applicant was notified of the mention today using the same email address in his application, with an email sent to him on 4 February 2025. That email again put the applicant on notice that if he failed to appear at the mention, his application for judicial review may be dismissed for non-appearance without further notice. The Order that I made on 4 February 2025 also included a notation that:

   If the applicant fails to appear at the mention on 10 February 2025, the application may 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).

10. I am satisfied that the applicant was properly notified of the mention and was notified of the potential consequences of failing to appear.

11. When the matter was called today, there was no appearance by or for the applicant. My associate attempted to contact the applicant on the telephone number recorded in his application, but without success. When the hearing was called, the interpreter who was booked to assist was asked to check in the Tamil language if the applicant was connected to the hearing and, when the interpreter did this, there was no response.

12. The Minister’s lawyer has also confirmed that since the matter was last before the Court on 4 February 2025, the Minister’s lawyer attempted to contact the applicant, but they have had no further contact from the applicant.

13. I am satisfied that the applicant has failed to appear at the mention today without a reasonable explanation.

14. In circumstances where the applicant has been properly notified of the mention, and without reasonable explanation has failed to appear at the mention, I am satisfied that it is appropriate to dismiss his judicial review application for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules.

15. I further note that in circumstances where the Court makes an order to dismiss the judicial review application in the absence of the applicant, the applicant may apply to the Court for the order to be set aside pursuant to r 17.05(2)(a) of the GFL Rules. If the Court were to make such an order, that would have the effect of reinstating the application.

16. The Minister seeks costs in the amount of $6,700. It is appropriate that costs follow the event in this matter. The amount sought by the Minister is lower than the scale amount for matters that are resolved at final hearing. The amount sought by the Minister is appropriate. Although the application has been dismissed at the mention today, the application came before the Court for final hearing last week and the Minister has incurred costs in preparing submissions and preparing to attend a final hearing on 4 February 2025.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       13 February 2025