DFG24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1005
•1 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFG24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1005
File number: PEG 181 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 1 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of 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 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 1 October 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 181 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFG24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
1 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “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 sum of $4,189.38.
4.Written reasons for judgment will 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 before the Court for a hearing of the application for an extension of time at 1.00pm on 1 October 2024. When the matter was called, there was no appearance by or on behalf of 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 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 $4,189.38.
4. Written reasons for judgment will 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 28 May 2024 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 12 April 2024 (and filed in this Court on 28 May 2024).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 25 March 2024. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 29 April 2024). The application filed by the applicant in this matter was thus filed 29 days outside of the requisite time period.
On 28 August 2024, orders were made by Registrar Downing of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 6 September 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time at 1.00pm on 1 October 2024.
On 27 September 2024, the parties were reminded of the date and time of the hearing. They were also provided with instructions in relation to an “in person” hearing at the Perth Registry of the Court.
As outlined above, when the matter came before this Court (on 1 October 2024), there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times. There was still no appearance by the applicant.
Mr Benjamin Mayne (“Mr Mayne”) appeared on behalf of the Minister.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Mr Mayne (affirmed on 30 September 2024 and filed on 1 October 2024 (the “Mayne affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Mr Mayne how the Minister wished to proceed in the circumstances.
Mr Mayne advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Mayne affidavit, the Court was satisfied that the applicant had been notified of the hearing date and time. He was also advised of how he could appear at that hearing and the possible cost consequences of failing to attend.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Mayne was prepared to make oral submissions, as required, in relation to the application for an extension of time.
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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 October 2024
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