CIU23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 834
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIU23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 834
File number: PEG 222 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 5 September 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 12 August 2024 Place: Perth Applicant: No appearance by or on behalf of 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
PEG 222 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIU23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
12 AUGUST 2024
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5.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 for a final hearing before the Court at 1.00pm on 12 August 2024 (via video link). When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 which was filed in the Perth Registry of this Court on 29 September 2023 (the “application”). That application was accompanied by an affidavit which was sworn and filed by the applicant on 29 September 2023.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 6 September 2023. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 24 November 2023, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”.
On 4 January 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 1.00pm on 29 July 2024.
On 16 July 2024, the applicant contacted my chambers (via email) and asked for a postponement of the hearing on the basis that she was “currently living in Carnarvon” and was having “financial problems”.
On 19 July 2024, my chambers responded to the parties and advised that, to avoid any unnecessary expense to the applicant relating to travel from Carnarvon to Perth to appear in person at the hearing (noting that Carnarvon is nearly nine hundred kilometres north of Perth), the Court would grant the applicant leave to appear at the hearing via video link (using Microsoft Teams). The applicant was also provided with instructions in relation to how she could appear at the hearing via video link.
On 29 July 2024, the parties were contacted by my chambers (via email) to advise that the hearing had been vacated and would be re-listed as soon as possible. The applicant replied (that same day) via email to confirm receipt of that correspondence.
On 1 August 2024, my chambers sent a further listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 1.00pm on 12 August 2024.
On 9 August 2024, the parties were reminded by my chambers of the date and time of the hearing. They were also provided instructions for an “in person” attendance at the Perth Registry of the Court (for the Minister) and attendance at that hearing by video link (using Microsoft Teams for the applicant).
On 12 August 2024, my chambers advised the Minister’s representative that they could also attend the hearing via video link.
When the matter came before this Court (on 12 August 2024) there was no appearance by or on behalf of the applicant. Ms Georgina Ellis (“Ms Ellis”) appeared at the hearing (via video link) on behalf of the Minister.
The Court confirmed that it had before it the correspondence between my chambers and the parties referenced above. This correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Mr Benjamin Mayne affirmed and filed on 26 July 2024 (the “Mayne affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should she not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Mayne affidavit was taken as read and in evidence.
The Court asked Ms Ellis how the Minister wished to proceed.
Ms Ellis advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules. Ms Ellis also sought the Minister’s costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibit 1 and the Mayne affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. She was also properly advised of how she could appear at that hearing (via video link) and the possible cost consequences of a failure to attend.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Ellis was prepared to make oral submissions as required by the Court.
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 her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 September 2024
0
0
2