CJQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1412

File number(s):

MLG 1826 of 2016

Judgment of:

JUDGE LUCEV

Date of judgment:

22 June 2021

Catchwords:

MIGRATION – judicial review application – dismissal for non-appearance

PRACTICE AND PROCEDURE – dismissal for non-appearance

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 13.03C

Number of paragraphs:

3

Date of last submission/s:

22 June 2021

Date of hearing:

22 June 2021

Place:

Perth

For the Applicant:

No appearance by or for the Applicant

Counsel for the First Respondent:

Ms S. J. Moxy

Solicitor for the First Respondent:

Sparke Helmore

For the Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 1826 of 2016

BETWEEN:

CJQ16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	22 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3.The hearing listed 1 February 2022 be vacated.

4.The Applicant pay the First Respondent's costs in the sum of $3,000 by 22 July 2021.

5.The ex tempore Reasons for Judgment be published from Chambers at a later date.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. The Court is satisfied that the Applicant was on notice of the hearing today, a notice of hearing having been sent to the Applicant at the email address specified in the originating application.  The Applicant was also advised in that notice that there was a telephone number to be called to be linked in by telephone to the hearing this morning, and that has obviously not occurred.  Further, from the affidavit of Ms Moxey, it is apparent that the Applicant is not in the country and has not been in the country since some time in 2019.  And further, that the Applicant does not have a current valid visa to re-enter Australia.

2. The Court also has regard to the fact that, as indicated in the Minister’s submissions, there is technically no application for judicial review of the Tribunal decision, per se, as opposed to the confirmation decision. In any event, the application, were it to be an application for judicial review of the Tribunal decision, is one which lacks, on its face, merit, and is therefore unlikely to succeed.  The Court also notes that the Applicant has not filed any submissions in relation to the application, pursuant to the orders of a Registrar of the Court permitting the Applicant to do so.

3. In those circumstances, the Court considers it appropriate that the application be dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       24 June 2021