CMT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 57
•2 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 57
File number(s): MLG 1922 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 2 February 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – visa citizen of Vietnam – refusal of Class XA and Class XD Subclass 866 Protection visa.
PRACTICE AND PROCEDURE – Where no appearance by applicant – where applicant has no active or current contact details with the Court and unable to be contacted – whether dismissal for non-appearance.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.13.06(1)(c)
Migration Act 1958 (Cth), s.476Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 2 February 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Mr C Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1922 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMT16
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:
2 FEBRUARY 2022
THE COURT ORDERS THAT:
1.
The originating application filed on 8 September 2016 be dismissed for
non-appearance.
2.The Applicant pay the First Respondent’s costs in the sum of $5000 by 2 March 2022.
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
(Delivered Ex Tempore and Revised from Transcript)JUDGE LUCEV
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, CMT16, on 8 September 2016 under s 476 of the Migration Act 1958 (Cth). CMT16 is a citizen of Vietnam. The Judicial Review Application is made in respect of a decision of the Administrative Appeals Tribunal handed down on 15 August 2016 that affirmed an 8 January 2015 decision of a delegate of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse to grant CMT16 a protection visa.
As is well-known and explained in cases such as AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren; Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev, there have been significant delays in bringing matters filed in the Melbourne Registry of this Court to hearing before a Judge. In that regard, the Court notes that this was a matter filed in 2016. It went before a Registrar and orders were made by a Registrar of the Court in March of 2017,
listing the matter for hearing in August of 2019, and then because of various circumstances it is unnecessary to detail, the matter was adjourned and delisted a number of times in the Melbourne Registry over 2019 and 2020. The matter was reallocated to the Perth Registry for hearing by a Judge of the Perth Registry in June of 2021 and listed for hearing today. It was also the subject of a directions hearing on 23 July 2021 when orders were made, which it is unnecessary to detail, save for the fact that those orders contained a note confirming today’s hearing date.
The originating application for CMT16 contains an address for service, a residential address in Sunshine in Victoria, no email but does have a mobile telephone number.
CMT16 is, as might be evident from what the Court has just said, seemingly resident in Victoria and the Minister’s lawyers are also based in Victoria for this matter. The Court has sent to that residential address Notices of Listing for the directions hearing on 23 July 2021, and also confirmation of today’s hearing and instructions as to how to dial into the hearing, which is being held by videolink, and the Court is advised that the postal material which has been sent to CMT16 has been returned to the Court as the sender of those postal materials.
The Court is also advised that both Perth Registry and Chambers staff over the months have endeavoured to contact CMT16 on his mobile telephone number provided in the originating application and up until today when no message was relayed on the telephone, there was simply an automated message to try again later. The Court also notes that Counsel for the Minister has advised the Court that the Minister has had no contact over the duration of these proceedings with CMT16.
Today the conduct of the hearing was by videolink, as so many of these cases now are,
and CMT16 did not dial in to the hearing and there was no appearance by CMT16.
The Court adjourned the matter briefly to enable a final attempt to be made to contact CMT16 on the mobile telephone number provided in the originating application. Three endeavours were made to call that number and there was simply no response whatsoever in relation to those calls: not even the “try again” message that the Court has earlier adverted to at [4] above.
In the circumstances, the Minister makes an application for dismissal of 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) with costs in the sum of $5000 which the Court notes is less than the sum to which the Minister is otherwise entitled under the relevant costs schedule.
In the circumstances outlined above, the Court is satisfied that all that could be done to contact CMT16 at the address and on the mobile telephone number provided in the originating application has been done. The Court also notes that CMT16 has not filed any further
Notice of Address for Service subsequent to the originating application and that there has been no contact otherwise with the Court to explain the lack of contact and non-appearances.
Orders for dismissal for non-appearance and payment by the CMT16 of the Minister’s costs in the sum of $5000 will be made.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 7 February 2022
0
2
2