CRP22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 477

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CRP22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 477

File number:

PEG 146 of 2022

Judgment of:

JUDGE KENDALL

Date of judgment:

6 June 2023

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicants – 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:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.01(2), 13.06(1)(c) & 17.05(2)(a)

Migration Act 1958 (Cth), s 476

Division:

Division 2 General Federal Law

Number of paragraphs:

24

Date of hearing:

6 June 2023

Place:

Perth

Applicants:

No appearance by or for the applicants

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore

ORDERS

PEG 146 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CRP22

First Applicant

CRQ22

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE KENDALL
DATE OF ORDER:	6 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 applicants 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

1. This matter was listed for a final hearing before the Court at 10.00am on 6 June 2023. When the matter was called, there was no appearance by or for the applicants.

2. 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 applicants 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.

3. 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

4. Before the Court is an application for judicial review filed in the Perth Registry of this Court on 20 July 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the first applicant on 18 July 2022 (and filed in this Court on 20 July 2022).

5. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 21 June 2022. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicants Protection (Class XA) (Subclass 866) visas.

6. 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”.

7. 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 6 June 2023.

8. On 2 June 2023, the parties were reminded of the date, time and location of the hearing.  They were also provided with instructions for an “in person” attendance at the Court.

9. On 4 June 2023, my chambers notified the parties that the start time of the hearing had been brought forward and that the hearing of the matter would now commence at 10.00am on 6 June 2023.

10. On 5 March 2023, Ms Georgina Ellis (“Ms Ellis”), solicitor for the first respondent (the “Minister”) responded to that email correspondence and advised that, “[i]n the event that the applicants [did] not appear at the hearing listed for … 6 June 2023 at 10.00am”, the Minister would “seek for the matter to be dismissed with costs”.

11. At 10.09am, shortly before the hearing commenced, my chambers received an email from the Court’s National Migration Team advising that a Notice of Discontinuance (the “Notice”) had been lodged by the first applicant (but was not yet accepted for filing by the Court) and attaching a copy of the Notice (dated 5 June 2023 and filed electronically at 3.02pm on 5 June 2023).

12. When the matter came before the Court at 10.20am (on 6 June 2023), there was no appearance by or for the applicants. Ms Ellis appeared at the hearing on behalf of the Minister. The matter was called three times but, as outlined above, the applicants did not appear in the court room.

13. The Court reviewed the Notice (a copy of which was shown to Ms Ellis). Two things were of note.

14. First, a notice of this sort may only be filed with the leave of the Court (or a Registrar) within 14 days of a final hearing date: s 13.01(2) of the Rules. That did not occur here.  At best, the Notice was filed the night before the scheduled hearing. 

15. Second, the Notice was only signed by one of the applicants.  The signatures of all applicants the subject of this proceeding were required.

16. In circumstances where the applicants were not before the Court and the agreement of both applicants to discontinue the proceeding was not apparent, the Court determined that it would be inappropriate to grant leave for the Notice to be accepted for filing.  The National Migration Team was, accordingly, instructed (after the hearing) to reject the Notice.

17. The Court asked Ms Ellis how the Minister wished to proceed.

18. 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.

19. In support of that position, Ms Ellis sought to rely on the correspondence set out above in relation to the change to the hearing start time. 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 29 May 2023 and filed in this Court on 30 May 2023 (the “Mayne affidavit”). The material annexed to the affidavit confirmed service of various documents on the applicants and put the applicants on notice that, should they not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Mayne affidavit was taken as read and in evidence.

20. The Notice referenced above was also tendered and referenced as Exhibit 2.

21. Noting the correspondence contained in the Mayne affidavit and Exhibit 1, the Court was satisfied that the applicants had been properly notified of the hearing date and amended hearing time.  They were also properly advised of how they could appear at that hearing.

22. 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 Elis was prepared to make oral submissions as required by the Court.

    CONCLUSION

23. 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.

24. The Court notes that the applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       13 June 2023