FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1263
File number(s): SYG 1014 of 2022 Judgment of: JUDGE ZIPSER Date of judgment: 25 November 2024 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 14 November 2024 Place: Parramatta Applicant: No Appearance Solicitor for the Respondents: Tahlia Jackson of Minter Ellison ORDERS
SYG 1014 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLL22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
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 ZIPSER
INTRODUCTION
On 14 July 2022, the applicant lodged an application for an extension of time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 January 2022.
The applicant did not attend the hearing in this Court on 14 November 2024. For the reasons that follow, the application to this Court is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
FACTUAL BACKGROUND
On 20 December 2017, the applicant lodged an application for a Protection (Class XA) (subclass 866) visa.
On 19 October 2020, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy s 36(2) of the Act, which requires an applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations.
On 4 November 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 30 November 2021, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments on 15 December 2021.
On 15 December 2021, the applicant failed to attend the scheduled Tribunal hearing. The Tribunal decided to dismiss the application pursuant to s 426A(1A) of the Act.
On 17 December 2021, the Tribunal, by letter sent by email, notified the applicant of its decision. The letter stated that the applicant could apply for reinstatement of the application by 31 December 2021 and any reinstatement application “should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted”.
On 31 December 2021, the applicant, by letter sent by email to the Tribunal, applied to reinstate her application citing the following reasons:
Since Covid-19 broke out 2020 and lock-down due to Delta spread and recent Omicro Pandemic, I have had experienced great health and mental decline. The ability to undertake formal event is almost down to zero. As for my poor health, I did not attend the scheduled hearing notified by your email.
On 4 January 2022, the Tribunal, pursuant to s 426A(1C) of the Act, confirmed the decision to dismiss the application.
On 5 January 2022, the Tribunal, by letter sent by email, notified the applicant of the confirmation decision.
PROCEEDINGS IN THIS COURT
Application and steps up to 13 November 2024
On 14 July 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 4 January 2022 (Application). The Application contained the following grounds (verbatim):
1.AAT failed to consider my fear and risk of harm upon return to China.
AAT failed to consider the evidence before them, I am not fit.
2.AAT failed to exercise a reasonable apprehension or actual bias.
3.AAT failed to consider my situation separately.
The applicant included in the Application an email address for service of documents (Applicant’s Email Address).
In light of the time limit for filing applications in s 477 of the Act, the applicant filed the Application about 156 days after the expiry of the time limit. The Application included the following grounds in support of her request to extend time:
1.I received decision from AAT on Jan 2022.
2.During to Covid-19 and long-time. lock-down, my mental health has declined.
3.The appeal was delayed and extension of time is requested.
The applicant’s affidavit filed on 14 July 2022 provided no additional details concerning her lengthy delay.
On 30 July 2024, a registrar made orders, at a listing at which the applicant appeared by telephone, assisted by an interpreter, that the applicant file and serve the following on or before 13 August 2024:
(a)any amended application giving proper particulars of the grounds of the application;
(b)any affidavit evidence; and
(c)written submissions.
On 30 July 2024, the Court emailed a copy of the orders to the parties, including to the applicant at the Applicant’s Email Address.
The applicant, in breach of the orders, did not file a written submission.
On 26 September 2024, the Court sent an email to the parties, including to the applicant at the Applicant’s Email Address, informing the parties that the matter was listed for hearing on 14 November 2024.
By 14 November 2024, other than the Application and accompanying affidavit lodged on 14 July 2022, the Applicant had filed no other documents in the proceeding.
Hearing on 14 November 2024
The hearing on 14 November 2024 commenced at about 10:20 am and concluded shortly after 10:30 am. The applicant did not appear. The matter was called outside the court room prior to the commencement of the hearing and was called a second time at 10:22 am during the hearing.
Tahlia Jackson from Minter Ellison appeared for the first respondent. She requested that the matter be dismissed pursuant to rule 13.06(1)(c) of the Rules. Ms Jackson tendered an email from Minter Ellison to the applicant dated 1 October 2024, sent to the Applicant’s Email Address, notifying the applicant of the hearing date.
The Court is satisfied the applicant was notified of the hearing date – by emails from the Court to the applicant on 26 September 2024 and from Minter Ellison to the applicant on 1 October 2024.
In the above circumstances, the Court accedes to the request by the first respondent to dismiss the matter pursuant to rule 13.06(1)(c) of the Rules.
A question may arise as to whether the applicant’s conduct explained above between 14 July 2022 and 14 November 2024 involves an abuse of the process of this Court. Since the application is to be dismissed pursuant to rule 13.06(1)(c) of the Rules, it is not necessary to consider this question further.
COSTS
Ms Jackson sought an order that the applicant pay the first respondent’s costs in the amount of $4,189.38. This amount appears fair and reasonable. The Court will make a costs order in this amount.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 25 November 2024
- AGLC
- CLL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1263
- Case
- [2024] FedCFamC2G 1263
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the AAT's authority to dismiss an appeal for non-appearance and the principles guiding the imposition of costs in such circumstances. The appellant argued that the AAT did not adequately consider his reasons for non-appearance and that the dismissal was unjust. The Minister contended that the AAT's decision was within its discretion and that costs should be awarded due to the appellant's failure to attend the hearing.
In its judgment, the court held that the AAT's decision to dismiss the appeal for non-appearance was within its discretion, noting that the appellant had not provided satisfactory reasons for his absence. The court also found that the AAT's consideration of the matter was sufficient and that the dismissal was appropriate under the circumstances. Regarding the costs, the court ruled that it was just and equitable to order the appellant to pay the costs of the proceedings, taking into account the appellant's responsibility for his non-appearance.
The court ultimately upheld the AAT's decision, dismissing the appeal and confirming the order for costs. The appellant was required to pay the costs of the proceedings, reflecting the court's view that the appellant's non-appearance was a significant factor warranting such an order.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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