DEJ22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 782
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEJ22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 782
File number(s): SYG 1384 of 2022 Judgment of: JUDGE KAUR-BAINS Date of judgment: 26 August 2024 Catchwords: MIGRATION – administrative law – judicial review – application for extension of time – dismissal for non-appearance – r 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, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 26 August 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1384 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEJ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration 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 amount of $4,189.38.
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 Kaur-Bains
By an application filed on 16 September 2022, the Applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act), in which to apply for judicial review of a decision of the Second Respondent (Tribunal) dated 28 October 2021. Pursuant to s 477(1) of the Act, an application for judicial review was required to be filed 35 days after the date of the migration decision. The migration decision was taken to be made on 28 October 2021. The Applicant applied for judicial review on 16 September 2022. Therefore, this application is about 288 days out of time.
BACKGROUND
Protection Visa
On 4 April 2018, the Applicant applied for a Protection (class XA, subclass 866) visa (the visa), on the basis that he feared harm if he returned to China on the basis that he is a devout Christian. On 24 September 2018, the Department of Home Affairs (Department) invited the Applicant for an interview. However, the Applicant did not attend the interview or contact the Department to explain his absence and provided no further material in support of his visa application. On 16 October 2018, a delegate (the Delegate) of the First Respondent (Minister) refused the visa application and wrote to the Applicant at the nominated email address.
On 19 October 2018, the Applicant within time, applied for merits review of the Delegate’s decision. On 2 September 2021, the Tribunal emailed the Applicant informing him of the possibility of his hearing being conducted over telephone or video due to COVID-19 and requested he provide his telephone number within 7 days. No response was received from the Applicant.
On 21 September 2021, the Tribunal emailed the Applicant, inviting him to attend a hearing by telephone scheduled for 8 October 2021 at 2.30pm (the hearing invitation). The hearing invitation enclosed a Factsheet MR18 - Information about hearings and a blank Form MR 19 - Response to hearing invitation 9. No response was received from the Applicant in response to this invitation.
On 8 October 2021, the Tribunal held a hearing to review the Delegate's refusal decision. The Applicant failed to appear. The Tribunal's case notes show the Tribunal waited from 2.30pm to 3pm for the Applicant to call the number listed in the hearing invitation.
On 13 October 2021, the Tribunal emailed the Applicant its non-appearance dismissal decision pursuant to s 426A(1A)(b) of the Act. In that notification, the Tribunal informed the Applicant of his entitlement to seek reinstatement of the application within 14 days. The Applicant did not take any steps to seek to reinstate his application. On 28 October 2021, the Tribunal emailed the Applicant its confirmation decision of the non-appearance dismissal decision pursuant to s 426A(1E) of the Act.
PROCEDURAL HISTORY
The Applicant listed the same street address for service, email address and telephone number in both the application for review to this Court and the supporting affidavit affirmed on 15 September 2022. Subsequent references will be made to those street and email addresses and telephone number respectively.
On 7 December 2022, Registrar Carney issued standard timetabling orders in this matter for a hearing date to be advised to the parties at a future date. On 24 July 2024, both parties appeared before Registrar Van Der Westhuizen by telephone at a Callover. The Applicant was assisted at the Callover by a Mandarin interpreter. Registrar Van Der Westhuizen made additional timetabling orders, including that the Applicant on or before 7 August 2024, file and serve any amended application with proper particulars and any affidavit evidence and written submissions. The Applicant has not filed an amended application or any additional material. The Registrar also put the parties on notice that the matter may be listed for hearing as soon as late August 2024.
On 8 August 2024, the Applicant was sent a Notice of Listing by email to the address he had nominated, notifying him that the extension of time hearing was listed for 26 August 2024 at 10:15am in person at the William Street Registry.
On 19 August 2024, the Minister filed an Affidavit of Service affirmed on 19 August 2024, evidencing service of the following:
(a)On 8 December 2022, a sealed copy of the Court Book to the Applicant’s nominated email address.
(b)On 13 August 2024, a sealed copy of the Minister’s written submissions to the Applicant’s nominated email address.
(c)On 19 August 2024, a letter by express post to the Applicant’s residential address noted on his Application for review as the service for address and as noted in his supporting affidavit enclosing a sealed copy of the Court Book.
(d)On 19 August 2024, an email to the nominated address forwarding the Notice of Listing from the Court dated 8 August 2024, and informing the Applicant that if he did not appear then the Minister would seek an order that the Application be dismissed for non appearance and seek costs.
The Court sent a number of emails to the Applicant’s nominated email address regarding the Extension of Time hearing as follows:
(a)On 8 August 2024, a Notice of Listing detailing the date, time and location of the hearing.
(b)On 15 August 2024, an email confirming the date, time and location of the hearing, along with a request that the Applicant notify the Court if any specific dialect of interpreter was required at the hearing.
(c)On 22 August 2024, an email confirming the date, time and location of the hearing, requesting that the Applicant contact the Court regarding the provision of an interpreter, and requesting that the Minister contact the Applicant by phone and email to ascertain whether the Applicant intended to appear at the hearing or whether he intended to discontinue the proceedings.
The Minister’s representatives on 23 August 2024 made numerous attempts to contact the Applicant by telephone but were unsuccessful in communicating with the Applicant.
At 10:15am of the morning of the hearing, there was no appearance by or on behalf of the Applicant in Court. The matter was called 3 times outside of the Courtroom, with no response from the Applicant. As a result of the non-appearance at the hearing by the Applicant, the Minister made an oral application that the proceedings 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 (Rules).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
CONSIDERATION
Given the contents of the Affidavit of Service filed by the Minister, the multiple emails sent by the Court, and the telephone calls from the Minister, I am satisfied the Applicant had sufficient notice of the Extension of Time hearing.
CONCLUSION
For the above reasons the application will be dismissed.
COSTS
The Minister made an oral application in Court that the Applicant pay the Minister’s costs fixed in the amount of $4,189.38. I am satisfied that this is an appropriate amount in the circumstances and order that the Applicant pay the Minister’s costs fixed in the amount of $4,189.38.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 26 August 2024
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