DLS21 v Minister for Immigration and Multicultural Affairs
[2024] FCA 1337
•18 November 2024
FEDERAL COURT OF AUSTRALIA
DLS21 v Minister for Immigration and Multicultural Affairs [2024] FCA 1337
Appeal from: DLS21 v Minister for Immigration, Citizen and Multicultural Affairs [2023] FedCFamC2G 537 File number(s): VID 559 of 2023 Judgment of: HESPE J Date of judgment: 18 November 2024 Catchwords: MIGRATION – application for extension of time and leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) – where Applicant did not appear at the hearing – application for dismissal made under r 35.33 Legislation: Migration Act 1958 (Cth) s 426A(1A)(b)
Federal Court Rules 2011 (Cth) r 35.33
Cases cited: DLS21 v Minister for Immigration, Citizen and Multicultural Affairs [2023] FedCFamC2G 537 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of hearing: 18 November 2024 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley ORDERS
VID 559 of 2023 BETWEEN: DLS21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HESPE J
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the costs of the First Respondent, to be taxed if not agreed.
3.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)HESPE J:
By an application filed on 21 July 2023, the Applicant seeks an extension of time and leave to appeal from interlocutory orders of the Federal Circuit and Family Court of Australia (Division 2) made on 23 June 2023 dismissing an application for review of a decision of a registrar of that Court to summarily dismiss the application for judicial review of a decision of the Administrative Appeals Tribunal: DLS21 v Minister for Immigration, Citizen and Multicultural Affairs [2023] FedCFamC2G 537.
Pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth), the Tribunal had dismissed the Applicant's application for review of a decision of a delegate of the First Respondent, being the Minister, not to grant the Applicant a protection visa without any further consideration of that application or information before the Tribunal. The Applicant did not apply for reinstatement within 14 days. The Tribunal confirmed the decision to dismiss the application. The application to this Court was not accompanied by the documents required by the Federal Court Rules 2011 (Cth). The ground for the application of the extension of time was that the Applicant had misunderstood the time for an appeal, and the grounds for the application for leave to appeal were expressed in generic terms.
The application was listed before me for hearing on 18 November 2024 to commence at 10.15 am. An email was sent to the parties by the registry of this Court on 10 September 2024 informing the parties that the matter would be heard on 18 November 2024 at 10.15 am. On Friday, 15 November 2024 my chambers contacted the parties advising them that the authorities had not been filed as required. That email commenced with the following sentence:
I refer to the above matter and the hearing listed at 10.15 am on Monday, 18 November 2024.
The Applicant responded to that email on 15 November 2024 requesting to know “where it is for hearing”. My chambers responded to that email informing the parties that the hearing was listed this morning, 18 November 2024 to take place at the Federal Court in Melbourne at 305 William Street, Melbourne, Victoria. As a result, I am satisfied that the Applicant was aware of the hearing time, date and location.
When the matter was called for hearing, there was no appearance by or on behalf of the Applicant.
The application was called outside the courtroom three times and there was no appearance by or on behalf of the Applicant. The Court adjourned for 10 minutes to allow time for an appearance. The matter was then called again three times outside the Court, and again, there was no appearance. The Court adjourned again for 10 minutes to allow further time. Again, the matter was called outside and there was no appearance.
The Minister has applied, pursuant to r 35.33 of the Rules, for the applications to be dismissed because of non-appearance.
In the circumstances, I will make an order dismissing the application. I am satisfied that the Applicant had notice of the date, the time and the location of the hearing of the application. I will make that order pursuant to r 35.33(1). The Minister is entitled to the costs of this application, which should be taxed in the absence of agreement.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. Associate:
Dated: 19 November 2024
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