CJI22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 339

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJI22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 339  

File number(s):	MLG 1582 of 2022
Judgment of:	JUDGE CHAMPION
Date of judgment:	2 May 2023
Catchwords:	MIGRATION LAW – Protection visa – Decision of the Administrative Appeals Tribunal – Judicial review application filed out of time – Application filed for extension of time – No appearance by of for the applicant – Application dismissed 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)
Legislation:	Federal Circuit and Family Court of Australia (Division 2) General Federal Law 2021 Rules (Cth) r. 13.06
Division:	Division 2 General Federal Law
Number of paragraphs:	5
Date of last submission/s:	2 May 2023
Date of hearing:	2 May 2023
Place:	Melbourne
The Applicant:	No appearance
Solicitor for the First Respondent:	Sparke Helmore Lawyers

ORDERS

MLG 1582 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJI22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE CHAMPION
DATE OF ORDER:	2 May 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $6,500.

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 CHAMPION:

1. I have before me an application filed on 4 July 2022 for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal made on 6 January 2022. 

2. When this matter was called on for hearing this morning, there was no appearance by the applicant.  I had the matter called outside the Court, and there was no appearance.  I am satisfied that the applicant was, in several ways, put on notice of this morning’s hearing.  First, by correspondence sent by email to the applicant at the email address recorded on her originating application on 28 February 2023, this matter was listed for final hearing before me this morning, 2 May 2023 at 10:00 am. Secondly, by correspondence from my chambers to the parties dated 27 April 2023, again sent to, among others, the applicant’s email address noted on her application, there was confirmation that this matter was listed for hearing this morning on 2 May 2023 at 10:00 am.

3. Ms Martin who appears for the respondent also provided to me this morning an affidavit of Ms Samantha Liddy, a lawyer in her office, made on 21 April 2023.  I treat that affidavit of service as read in these proceedings.  Among other matters, Ms Liddy’s affidavit annexes a letter dated 18 April 2023 from lawyers for the first respondent to the applicant, noting that this matter is listed for hearing this morning, 2 May 2023 at 10:00 am.  Further, her correspondence notes that:

   If you do not attend on this occasion, the respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister’s legal costs of the proceedings.

4. In all the circumstances, I am satisfied that it is appropriate for the court to make an order in default of appearance of the applicant on this occasion. I make an order pursuant to r. 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law 2021 Rules (Cth) to dismiss the application in the absence of the applicant. 

5. As to costs, I note that Ms Martin seeks on behalf of her client an order for costs for $6,500 being an amount greater than that provided for an interlocutory hearing and less than for a proceeding concluded at final hearing in accordance with the Schedule 2 costs arrangements annexed to the Rules.  In circumstances in which this matter was scheduled to proceed to a final hearing in the event that an extension of time were granted and the applicant was so notified by correspondence from my chambers on 28 February 2023, in my judgment, an order for costs fixed in the amount of $6,500 is appropriate.  Accordingly, I issue orders as follows:

   (1)The application is dismissed.

   (2)The applicant pay the first respondent’s costs fixed in the sum of $6,500.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Champion.

Associate:

Dated:       2 May 2023