DMJ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 603
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 603
File number: PEG 203 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 10 July 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – 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 (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: 19 Date of hearing: 10 July 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 203 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMJ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
10 JULY 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 $4,000.
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 before the Court for a hearing of an application for an extension of time at 11.00am on 10 July 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 $4,000.
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 26 October 2022 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 25 October 2022 (and filed in this Court on 26 October 2022).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 22 August 2022. As per s 477 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 26 September 2022). The application filed by the applicant was filed 30 days outside of the requisite timeframe.
On 19 December 2022, orders were made by Registrar Carney in this Court programming the matter to a “hearing of the application for an extension of time 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 hearing of the application for an extension of time at 11.00am on 12 June 2023.
On 26 February 2023, the parties were notified that the matter had been re-listed and the hearing of the application for an extension of time would take place at 11.00am on 10 July 2023.
On 7 July 2023, the parties were reminded of the date, time and location of the hearing. They were also provided instructions for an “in person” attendance at the Court.
As outlined above, when the matter came before this Court (on 10 July 2023), there was no appearance by or on behalf of the applicant. Ms Centaine Mumford appeared at the hearing on behalf of the Minister. The matter was called three times but, as noted above, the applicant did not appear.
At the hearing, Ms Mumford sought to rely on the affidavit of service of Ms Centaine Alexandra Mumford affirmed and filed on 27 June 2023 (the “Mumford affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should she not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. Ms Mumford also sought to rely on correspondence from my chambers to the parties regarding the re-listing of the matter and “in person” hearing arrangements.
Correspondence from my chambers (as set out above) was tendered and referenced as Exhibit 1.
The Mumford affidavit was taken as read and in evidence at the hearing.
The Court asked Ms Mumford how the Minister wished to proceed in the circumstances.
Ms Mumford 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 $4,000.
Noting the correspondence contained in Exhibit 1 and the Mumford affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time and also advised of how she could appear at that hearing.
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 Ms Mumford 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 her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 July 2023
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