DJL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 446
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 446
File number(s): MLG 1627 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 7 June 2022 Catchwords: MIGRATION – protection visa (class XA) – decision of the Administrative Appeals Tribunal – matter listed for 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. Legislation: Migration Act 1958 (Cth) s 476.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06(1)(c).
Division: Division 2 General Federal Law Date of last submission/s: 6 June 2022 Date of hearing: 7 June 2022 Place: Melbourne Number of paragraphs: 16 Place: Melbourne The Applicant: No appearance by or for the Applicant Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1627 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
7 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services 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 $5,000.
4.Written reasons for judgment to be published from chambers following the final hearing.
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 Mansini
INTRODUCTION
This matter was listed before the Court for a final hearing on 7 June 2022. When the matter was called there was no appearance by or for the Applicant.
In the circumstances, the Court ordered that the application be dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) and the Applicant pay the First Respondent’s costs fixed in the sum of $5,000 with written reasons for judgment to be published from chambers.
These are the written reasons for judgment issued from chambers following the final hearing. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal, made pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The application was accompanied by an affidavit, filed on 27 July 2017.
On 4 April 2018, orders were made by Registrar Ryan of this Court programming the matter to a final hearing. The matter was fixed for hearing on various dates in the period April 2018 to May 2022 which were ultimately vacated.
On 19 January 2022, the Applicant filed a notice of address for service which included his email address for service.
On 22 April 2022, the parties were notified that the matter was fixed for final hearing at 10.00am on 7 June 2022 before the Court as presently constituted. That correspondence was sent to the Applicant at his nominated email address for service.
On 23 May 2022, the parties were reminded by chambers of the date, time and location of the hearing, provided instructions for attendance in-person and were requested to confirm certain information in advance of the hearing. That correspondence was sent to the Applicant at his nominated email address for service.
On 31 May 2022, the solicitor for the First Respondent responded to chambers’ email of 23 May 2022. The materials filed by the First Respondent (court book, submissions, and letters of service on the Applicant dated 19 April 2022 and 18 April 2018) were attached to that correspondence. The Applicant, at his nominated email address for service, was copied on that correspondence.
Since the orders of 4 April 2018, the Applicant did not file anything further in support of this application for review nor did he seek a further period in which to do so. However, no response to the hearing reminder and request for information in chambers’ email of 23 May 2022 was received from the Applicant.
On 7 June 2022, the matter was called for a final hearing. Mr Orchard appeared for the First Respondent. Unfortunately, there was no appearance by or for the Applicant.
The Court asked Mr Orchard how the First Respondent wished to proceed in the circumstances.
Mr Orchard advised that he sought to have the Court take notice of the correspondence on its file that the Applicant was on notice of the hearing and of the correspondence from his office to the Applicant (dated 18 April 2018 and 19 April 2022) in which the First Respondent advised the Applicant that, if he did not appear at the final hearing, the First Respondent would seek orders that the application be dismissed and that the Applicant pay the First Respondent’s costs of the proceedings.
Mr Orchard ultimately sought for the matter to be dismissed pursuant to r.13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $5,000.
Noting the correspondence outlined above, the Court was satisfied that the Applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the First Respondent in the fixed amount of $5,000 being as sought and less than the scale at Schedule 2, Part 2, Division 1 of the Rules.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 7 June 2022
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