Cog17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 34
•28 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 34
File number(s): MLG 1373 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 28 January 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – dismissal for non-appearance.
PRACTICE AND PROCEDURE – Dismissal for non-appearance.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.13.06
Federal Circuit Court Rules 2001 (Cth), r.13.03C
Migration Act 1958 (Cth), ss.426A, 476Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 28 January 2022 Date of hearing: 28 January 2022 Place: Perth For the Applicant: No appearance Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1373 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COG17
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:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 27 June 2017 be dismissed 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).
2.The Applicant pay the First Respondent’s costs in the sum of $5,000 by 28 February 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 filed by the applicant, COG17, in the Melbourne Registry of the Court on 27 June 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal”) handed down on 2 June 2017 which dismissed an application for a review of a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), in circumstances where COG17 did not appear before the Tribunal and the Tribunal dismissed the application under s 426A(1A)(b) of the Migration Act.
When the matter came before the Court today there was no appearance by or for COG17 and consequently Counsel for the Minister applied for the matter to be dismissed 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) (“GFL Rules”).
The Court observes that the Judicial Review Application came before Registrar Luxton on 21 February 2018 and on that occasion programming orders were made and the matter was listed for final hearing on a date to be advised, before Judge Riethmuller. On 11 July 2018, a Notice of Listing was sent to the parties, listing the matter before Judge Riethmuller for final hearing on 31 October 2018. On 31 October 2018, the hearing was convened and orders made by Judge Riethmuller adjourned the hearing to a “date to be advised” due to the non-appearance for the First Respondent which the Court then constituted attributed to a diary error.
Ultimately, because of not insignificant delays in hearing matters in the Melbourne Registry of this Court, in August 2021 the matter was transferred to the Perth Registry and listed before the Court as presently constituted for hearing today and was, as noted by Counsel for the Minister, also the subject of a directions hearing by the Court on 26 August 2021 by video link between Perth and Melbourne.
On 26 August 2021, at the directions hearing, the presiding Judge made fresh orders programming the matter and listing the matter for final hearing before the Court as presently constituted today at 12.30 pm AWST / 3.30 pm AEDT by video link (“August Order”). The Court also specifically noted on the order that if COG17 did not appear at the final hearing today, the application may be dismissed for non-appearance pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) which have since been replaced by the GFL Rules to which the Court has already referred.
The August Order was read in Court where COG17 had the assistance of a Malay interpreter and the order was interpreted for COG17. Subsequently, the order was reduced to writing and sent to the parties. On 27 August 2021, the parties were also sent a Notice of Listing by the Court with today’s time and date for the hearing. In addition to the above correspondence, the parties were sent an email Confirmation of Listing on 25 January 2022 reminding them of the time and date for the hearing today and also indicating what the arrangements were for the parties to call in for the video link hearing.
The relevant correspondence to which the Court has referred, namely, the sending of the August Order, the 27 August 2021 Notice of Listing, and the 25 January 2022 Confirmation of Listing were all sent to the email address for service provided by COG17 to the Court and, in that regard, the Court notes that COG17 did appear at the 26 August 2021 directions hearing following advice of that listing sent to the same email address.
Today there was no call in by COG17 for the purposes of the video link. Upon that occurring the Court was informed that Chambers staff twice called the mobile telephone number on the Originating Application, that being the most current contact information for COG17, and received no response. When the matter was called the Court noted those endeavours to contact COG17 and adjourned the hearing briefly to allow further endeavours to contact COG17 to be made. The Court was informed that a further two calls were made to the relevant mobile telephone number without being able to raise or contact COG17.
In the circumstances, the Court is satisfied that COG17 was properly on notice of the hearing today and that COG17 has simply failed to appear. In all of those circumstances, and particularly given the admonition in the note to the August Order, there is no reason why the Court ought not to dismiss the matter for non-appearance. There will, therefore, be an order to dismiss the matter for non-appearance, with costs. Costs are sought in the sum of $5,000 by the Minister. There is no reason why that sum ought not to be awarded, it being less than the amount prescribed in the relevant Schedule for costs of a matter of this type in the Court.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 31 January 2022
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