CLV19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 948
•23 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLV19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 948
File number(s): SYG 1555 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 23 September 2024 Catchwords: MIGRATION – Judicial review – application for an extension of time – dismissal for non-appearance Legislation: Migration Act 1958 (Cth) ss 65, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.03, 13.06
Division: Division 2 General Federal Law Number of paragraphs: 9 Date of hearing: 23 September 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms S Lloyd of MinterEllison Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1555 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLV19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
23 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Application for an extension of time and the proceedings are 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).
3.The Applicant pay the First Respondent’s costs fixed in the amount 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 Kaur-Bains
By an amended application filed on 16 August 2024, the Applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act), in which to apply for judicial review of a decision of the Second Respondent (Tribunal) dated 14 November 2018. Pursuant to s 477(1) of the Act, an application for judicial review was required to be filed 35 days after the date of the migration decision. The migration decision was taken to have been made on
14 November 2018. The application for judicial review is about 187 days out of time.
BACKGROUND
The Applicant is a citizen of Fiji, who first arrived in Australia on a Tourist (subclass 676) visa on 9 April 2000. He travelled to and from Australia a number of times on subsequent Tourist (subclass 676) visas and returned on a Visitor (subclass 600) visa on 15 December 2013. He became an unlawful non-citizen after that visa expired. On 31 May 2016, the Applicant applied for a protection visa. A delegate of the Minister on 21 September 2016, refused to grant the Applicant a protection visa under s 65 of the Act. On 14 November 2018 the Tribunal affirmed the delegate’s decision not to grant the visa.
PROCEEDINGS BEFORE THE COURT
In these proceedings, the Applicant was initially represented by Chaudhry Legal, Solicitors. On 10 September 2024, the principal solicitor of Chaudry Legal filed an “Notice of Intention to Withdraw as Lawyer”. On 18 September 2024, a Notice of Withdrawal of Lawyer was filed by Chaudry Legal. All the said documents were filed in compliance with r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
At 10:15am of the morning of the hearing there was no appearance by or on behalf of the Applicant. The Court called the Applicant on the telephone numbers on his application, to which there was no answer. At 10:31am the matter was called three times outside of the Courtroom, with no appearance from the Applicant. As a result of the non-appearance by the Applicant, the Minister made an application that the proceedings be dismissed pursuant to
r 13.06(1)(c) of the Rules with costs.
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
CONSIDERATION
In support of the Minister’s application for dismissal, the Minister relied on the following three emails:
(a)Email dated 19 September 2024 sent at 3:32pm from the Court to the Applicant’s email address, confirming the hearing date, time and court room (Exhibit R1).
(b)
Email dated 19 September 2024 sent at 4:39pm from the Minister’s representative, confirming the hearing date, time and court room and putting the Applicant on notice that if he did not appear at the hearing, the Minister would seek dismissal for
non-appearance and a costs order (Exhibit R2).
(c)Email dated 20 September 2024 sent at 4:03pm from the Minister’s representative again confirming the hearing date, time and court room and attaching the relevant filed court documents (Exhibit R3).
The Minister also relied on the Notice of Withdrawal of Lawyer filed 18 September 2024 in which the Applicant’s previous lawyer confirmed he had served the Notice of Intention to Withdraw as Lawyer to the Applicant’s postal address as well as emailing the Applicant. The Minister noted the Notice of Intention to Withdraw as lawyer filed on 10 September 2024 set out the Applicant’s notice of address for service as well as two telephone numbers and email address.
Given the above, I am satisfied the Applicant had sufficient notice of the hearing today. Therefore, the application for extension of time and the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the Applicant pay the Minister’s costs fixed in the amount of $4,189.38. I am satisfied this is an appropriate amount in the circumstances and order the Applicant pay the Minister’s costs fixed in the amount of $4,189.38.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 23 September 2024
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