CYW22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 816
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 816
File number: PEG 173 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 6 September 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), ss 426A & 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)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 6 September 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms B Rayment (via video link) Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 173 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYW22
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 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Counsel for the first respondent have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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 11.00am on 6 September 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.Counsel for the first respondent have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
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 29 August 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 23 August 2022 (and filed in this Court on 29 August 2022).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). By that application, the applicant sought review of a Non-Appearance Decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 2 August 2022. In that decision, the Tribunal dismissed the applicant’s review application under s 426A(1A)(b) of the Act because the applicant failed to appear at a scheduled hearing before the Tribunal.
On 21 October 2022, orders were made by Registrar Carney of this Court programming the matter to a final hearing on a date to be advised.
On 8 November 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 11.00am on 15 June 2023.
On 26 February 2023, my chambers notified the parties that the hearing listed on 15 June 2023 had been vacated and had been re-listed to 13 July 2023 at 11.00am.
On 12 July 2023, my chambers notified the parties that the hearing listed on 13 July 2023 had been vacated and that the hearing had been re-listed to 6 September 2023 at 11.00am.
On 1 September 2023, Ms Ellis from Sparke Helmore contacted my chambers to seek leave for the Minister’s representative to appear remotely at the hearing on 6 September 2023.
Later that day (also on 1 September 2023), my chambers responded to the parties confirming that counsel for the Minister could appear at the hearing via video link and reminding the parties of the date, time and location of the hearing. The parties were also provided with instructions for an “in person” attendance at the Court (by the applicant) and an appearance “by video link” (on behalf of the Minister).
When the matter came before the Court (on 6 September 2023), there was no appearance by or for the applicant. Ms Rayment from Sparke Helmore appeared at the hearing on behalf of the Minister (via video link). The matter was called three times but, as outlined above, the applicant did not appear.
The Court asked Ms Rayment how the Minister wished to proceed.
Ms Rayment advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules. Ms Rayment also sought the Minister’s costs, fixed in the sum of $6,500.
In support of that position, Ms Rayment sought to rely on the email from chambers to the parties sent on 1 September 2023 (as outlined above).
Ms Rayment also relied on the affidavit of service of Benjamin Mayne affirmed and filed on 6 July 2023 (the “Mayne affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at a scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs.
The Mayne affidavit was taken as read and in evidence.
Correspondence from my chambers to the parties (outlined above and dated 1 September 2023) was tendered and referenced as Exhibit 1.
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. He was also properly advised of 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 Rayment 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: 14 September 2023
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