DHV18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1080
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DHV18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1080
File number(s): MLG 1851 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 4 October 2024 Catchwords: MIGRATION – protection visa – non-appearance by or on behalf of the application – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476, 65, 477(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of last submission/s: 4 October 2024 Date of hearing: 4 October 2024 Place: Melbourne Solicitor for the Applicant The Applicant did not appear Solicitor for the Respondents Mr O’Shannessy, Mills Oakley ORDERS
MLG 1851 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application for an extension of time and the application for judicial review filed 26 June 2018 are dismissed pursuant to rule 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 and disbursements of and incidental to these proceedings fixed in the amount of $3,000.00.
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
(revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 4 October 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor maters to reflect the intention of the court.
By an application filed with this Court on 26 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 January 2017 pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The Tribunal concluded that it did not have jurisdiction to further review a decision of the delegate of the first respondent (Minister) to refuse to grant a protection visa to the applicant under s 65 of the Act.
The application for judicial review was filed late, therefore, the applicant was required to seek an extension of time pursuant to s 477(2) of the Act. The application, being approximately sixteen months out of time, identified a number of grounds upon which the applicant sought to obtain an extension of time, none of which were supported by any evidence. The application for an extension of time was opposed by the Minister.
When this matter was called on for hearing this morning, there was no appearance by or on behalf of the applicant. However, prior to the Court convening, Mr O'Shannessy, the solicitor for the Minister, telephoned the applicant who advised him that he was unaware that he had received an email from the Court notifying him of the listing, that he had not in fact seen the email, and did not realise that the matter was listed for hearing today. He subsequently responded to Mr O’Shannessy email correspondence to the Court confirming the telephone discussion and requested that the matter be adjourned.
Mr O'Shannessy properly informed the Court of the application for an adjournment, which was refused on grounds that the applicant had received proper notification from the Court and from the Minister's solicitor of the time and date of this hearing.
When the matter was called on for hearing this morning, the applicant did not appear.
At 10.21am, the applicant was called three times outside of Court and there was no appearance by or on behalf of the applicant.
Mr O'Shannessy sought an order pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules)2021 (Cth) (Rules) that the application for an extension of time and application for judicial review be dismissed for non-appearance of the applicant. In support of that application, Mr O’Shannessy relied upon the contents of the Court Book, marked exhibit “R1”, and three emails, marked exhibit “R2”, “R3” and “R4”, notifying the applicant of the hearing this morning and serving him with a copy of the Minister's outline of submissions.
At 10.34am the applicant was still not present in Court. I am satisfied that the applicant was notified of today's hearing date by the Court at the email address provided by him and nominated as his address for service. However, having reviewed the contents of the Court Book, there has been a consistent failure on the applicant’s behalf to attend not only before the delegate, but before the tribunal and now this Court. I am satisfied that the non-attendance has occurred in circumstances where the applicant was properly on notice and made aware of the consequences of his failure to appear.
In all of the circumstances, I am prepared to dismiss the proceedings and the application for an extension of time pursuant to r 13.06(1)(c) of the Rules.
The solicitor for the Minister has sought the costs of the application to date fixed in the sum of $3,000.00, which is a fair and reasonable amount and less than the applicable scale under the Rules. I propose to make an order to the effect that the applicants pay those costs in that amount.
The solicitor for the Minister has also sought an order that the title of the proceeding and the name of the first respondent be changed to the Minister for Immigration and Multicultural Affairs. I will make an order to that effect.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 4 October 2024
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