CMU22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 587
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 587
File number(s): PEG 138 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 June 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for 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)
Cases cited: Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 30 June 2023 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 138 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMU22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.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).
3.The applicant pay the first respondent’s costs fixed in the sum of $6,500.
4.Written reasons for judgment to 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 12.30pm on 30 June 2023. When the matter was called there was no appearance by or for 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, Citizenship and Multicultural Affairs”.
2.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).
3. The applicant pay the first respondent’s costs fixed in the sum of $6,500.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 filed in the Perth Registry of this Court on 15 July 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 14 July 2022 (and filed in this Court on 15 July 2022).
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 Administrative Appeals Tribunal (the “Tribunal”) on 27 June 2022. In that decision, the Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 23 September 2022, orders were made by a Registrar of this Court, programming the matter to a final hearing “on a date to be advised”.
On 7 November 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing before this Court at 11.00am on 11 May 2023.
On 21 April 2023, the applicant attempted to re-file his sealed judicial review application with the Court. My chambers were advised (by the Court’s registry team) that when doing so, the applicant also requested a hearing date of 1 December 2023. My chambers contacted the applicant (via email) on 28 April 2023 to advise that, in the event that he was seeking an adjournment of the hearing, an application in a proceeding should be filed.
The applicant did not respond to that correspondence and no formal adjournment request was made.
On 5 May 2023, my chambers contacted the parties to advise that the hearing of this matter had been rescheduled to 29 June 2023 at 11.00am.
On 21 June 2023, the parties were reminded of the date and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court and advised that the hearing start time had been changed to 12.30pm.
On 23 June 2023, Ms Ellis (solicitor for the Minister) contacted my chambers (via email) to enquire whether the Court required further written submissions from the parties in relation to the recent Federal Court decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (“Sandor”) and its applicability to this matter.
On 25 June 2023, my chambers responded to Ms Ellis and advised that the decision in Sandor would be discussed with the parties at the hearing on 29 June 2023 at 12.30pm (including in relation to the need for any further written submissions).
On 27 June 2023, my chambers notified the parties that the hearing of this matter had been rescheduled to 30 June 2023 at 12.30pm.
When the matter came before the Court at 12.30pm (on 30 June 2023), there was no appearance by or for the applicant. Ms Ellis appeared at the hearing on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear in the court room.
The Court asked Ms Ellis how the Minister wished to proceed.
Ms Ellis advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and also sought the Minister’s costs, fixed in the sum of $6,500.
In support of that position, Ms Ellis sought to rely on the correspondence set out above in relation to the change to the hearing date (from 29 June 2023 to 30 June 2023). That correspondence was tendered and referenced as Exhibit 1. Ms Ellis also sought to tender the affidavit of service of Mr Benjamin Mayne affirmed on 1 May 2023 and filed in this Court on 2 May 2023 (the “Mayne affidavit”). The material annexed to the 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 may seek to have the matter dismissed with costs. The Mayne affidavit was taken as read and in evidence.
Noting the correspondence contained in the Mayne affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time. The applicant was also properly advised in relation to how he could appear at that hearing.
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 Ellis 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, as outlined at [2] above.
The Court 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-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 6 July 2023
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