Chocano v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 212
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chocano v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 212
File number: MLG 3945 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 29 March 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for directions hearing at the request of the first respondent – 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 Rules (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth), rr 11.10(1) & 13.06(1)(c)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 11 March 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3945 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDA MARTINA JARA CHOCANO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”), the applicant’s father, Mr Felipe Alberto Jara Munoz, is hereby appointed litigation guardian for the applicant.
2.The application for review filed on 9 November 2020 be dismissed pursuant to r 13.06(1)(c) of the Rules.
3.The litigation guardian pay the first respondent’s costs, fixed in the sum of $3,737.
4.Written reasons for judgment 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 directions hearing on 11 March 2022. When the matter was called, there was no appearance by or for the applicant.
The Court made the following orders:
1.Pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”), the applicant’s father, Mr Felipe Alberto Jara Munoz, is hereby appointed litigation guardian for the applicant.
2.The application for review filed on 9 November 2020 be dismissed pursuant to r 13.06(1)(c) of the Rules.
3.The litigation guardian pay the first respondent’s costs, fixed in the sum of $3,737.
4. Written reasons for judgment 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 proceeded to dismiss the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed on behalf of the applicant in the Melbourne Registry of this Court on 9 November 2020 (the “application”). The application was filed by Fairfields Lawyers and was accompanied by an affidavit of Don Susantha Katugampala (“Mr Katugampala”) affirmed and filed on 9 November 2020.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 5 October 2020.
On 4 March 2022 at 2.22pm, Chambers was contacted via email by Georgina Ellis (“Ms Ellis”), counsel for the first respondent (the “Minister”). In that email, Ms Ellis stated:
The applicant’s family’s matter (MLG204/2018) was discontinued on 8 December 2021. The applicant sought the visa on the basis of being a member of the family unit of the primary person (i.e. the first applicant in MLG204/2018) who held a Student visa. Given MLG204/2018 was discontinued, the present matter is now futile.
We have approached the applicant’s legal representative with proposed consent orders discontinuing the proceeding three times but have not received a response (attached).
We therefore seek for the matter to be listed for a directions hearing before a judge. The Minister may make an oral application for summary dismissal under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on the basis that the proceeding has no reasonable prospect of success.
We would be grateful if you would confirm whether his Honour is minded to list the matter as requested.
Ms Ellis’ email attached other email correspondence that had been sent by Ms Ellis to Mr Katugampala between 8 December 2021 and 22 February 2022 (and to which no response was received).
The email from Ms Ellis and the attachment were tendered and referenced by the Court as Exhibit 1.
On 9 March 2022 at 12.42pm, Chambers advised the parties that a directions hearing had been listed by telephone at 1.30pm (AEDT) / 10.30am (AWST) on 11 March 2022. Notification of that listing was sent to Fairfields Lawyers at the email address included in the application. This notification was tendered and referenced as Exhibit 2.
As outlined above, when the matter came before the Court (on 11 March 2022), there was no appearance by or for the applicant. The Court asked Ms Ellis how the Minister wished to proceed in the circumstances. Ms Ellis sought the following orders:
(i)the applicant’s father be appointed as litigation guardian for the applicant pursuant to r 11.10(1) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”);
(ii)the matter to be dismissed for non-appearance pursuant r 13.06(1)(c) of the Rules; and
(iii)the applicant’s litigation guardian pay the Minister’s costs in the scale amount which, in this matter, was $3,737.
On the basis of the exhibits referenced above, the Court was satisfied that the applicant’s representative had been properly notified of the directions hearing date and time and how the parties could participate.
CONCLUSION
In the circumstances, the Court made orders to appoint a litigation guardian, dismiss the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules and awarded costs to the Minister in the amount of $3,737.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 March 2022
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