CKB24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1155
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CKB24 v Minister for Immigration and Multicultural Affairs[2024] FedCFamC2G 1155
File number: PEG 147 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 22 October 2024 Catchwords: MIGRATION – Protection visa – decision of the then 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: 24 Date of hearing: 22 October 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 147 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CKB24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent.
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 $5,400.
5.Written reasons for judgment will 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 11.00am on 22 October 2024. 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.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent.
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 $5,400.
5. Written reasons for judgment 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 April 2024 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 27 April 2024 (and filed in this Court on 29 April 2024).
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 then Administrative Appeals Tribunal (the “Tribunal”) on 2 April 2024. By that decision, the Tribunal dismissed the applicant’s review application (as filed with the Tribunal) because the applicant had failed to appear at a scheduled hearing before it.
On 27 August 2024, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”.
On 8 September 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 on 22 October 2024 at 11.00am.
On 18 October 2024, the parties were reminded by my chambers of the date and time of the hearing. They were also given instructions for an “in person” attendance at the Court’s Perth Registry.
On 21 October 2024, Ms Maggie Woollett (“Ms Woollett”) from the Australian Government Solicitor (“AGS”), (solicitor for the first respondent (the “Minister”)) sent an email to my chambers annexing correspondence from their offices to the applicant. That correspondence put the applicant on notice that, should he not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs.
As outlined above, when the matter came before this Court (on 22 October 2024), there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times. There was still no appearance by the applicant.
Ms Madisen Scott (“Ms Scott”) from AGS appeared at the hearing on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). That correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it the correspondence Ms Woollett to my chambers (with attachments, as referenced above). That correspondence was tendered and referenced as Exhibit 2.
The Court finally confirmed that it had before it an affidavit of service of Ms Woollett (affirmed and filed on 16 October 2024 (the “Woollett affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Woollett affidavit was taken as read and in evidence.
The Court asked Ms Scott how the Minister wished to proceed.
Ms Scott 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 Scott also sought the Minister’s costs, fixed in the sum of $5,800.
Noting the correspondence contained in Exhibits 1 and 2 and the Woollett affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing 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 Scott 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, in the sum sought.
After the hearing (on 22 October 2024), my chambers sent a copy of the orders made in this matter to the parties. Ms Scott contacted my chambers and requested that the amount in costs awarded to the Minister be reduced to $5,400 (pursuant to r 17.05(2)(f) of the Rules).
Rule 17.05(2)(f) of the Rules relevantly provides as follows:
17.05 Setting aside or varying judgments or orders
…
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
…
(f) the party in whose favour it was made consents; or
…
Here, the costs order was made in favour of the Minister and Ms Scott sought a reduction in the amount awarded (in her capacity as solicitor for the Minister). A reduction in the amount awarded to the Minister benefits the applicant (by reducing the debt owed by him to the Minister).
In the circumstances, the Court was satisfied that it was appropriate to reduce the amount awarded to the Minister (as requested) and amended its orders accordingly (as outlined at [2] above).
The Court also notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 November 2024
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