DLA22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 905
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DLA22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 905
File number: PEG 198 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 October 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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 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: 21 Date of hearing: 9 October 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 198 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DLA22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS THAT:
1.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $5,400.
3.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 12.00pm on 9 October 2023. 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 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).
2. The applicant pay the first respondent’s costs, fixed in the sum of $5,400.
3. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 19 October 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 17 October 2022 (and filed in this Court on 19 October 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 decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 28 September 2022. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 19 December 2022, orders were made by Registrar Carney of this Court programming the matter to a final hearing on a date to be advised.
On 29 January 2023, 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 11 April 2023.
On 26 February 2023, my chambers notified the parties that the hearing listed on 11 April 2023 had been vacated and it had been re-listed to 20 April 2023 at 11.00am.
On 3 April 2023, my chambers notified the parties that the hearing listed on 20 April 2023 had been vacated and that the hearing had been re-listed to 9 October 2023 at 11.00am.
On 6 October 2023, the parties were reminded of the date and location of the hearing. They were also notified that the hearing would now commence at 12.00pm and were provided with instructions for an “in person” attendance at the Court.
When the matter came before the Court (at 12.00pm on 9 October 2023), there was no appearance by on behalf of the applicant. Ms Madisen Scott (“Ms Scott”) from the Australian Government Solicitor appeared at the hearing on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear.
The Court asked Ms Scott how the Minister wished to proceed.
Ms Scott advised the Court that the Minister sought to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Ms Scott also sought the Minister’s costs, fixed in the sum of $5,400.
In support of that position, Ms Scott sought to rely on the email correspondence from chambers to the parties sent on 6 October 2023 (as outlined above).
Ms Scott also relied on the affidavit of service of Ms Scott affirmed on 28 September 2023 and filed on 29 September 2023 (the “Scott 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 Scott affidavit was taken as read and in evidence.
Correspondence from my chambers to the parties (outlined above and dated 6 October 2023) was tendered and referenced as Exhibit 1.
Noting the correspondence contained in the Scott 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 Scott 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-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 October 2023
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