DNH22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 880
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 880
File number: PEG 216 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 2 October 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – 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 477(1)
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: 21 Date of hearing: 2 October 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 216 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNH22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 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 $4,189.38.
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 2 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 $4,189.38.
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 7 November 2022 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 16 October 2022 (and filed in this Court on 7 November 2022).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 1 March 2022. As per s 477(1) 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 5 April 2022). The application filed by the applicant was filed 216 days outside of the requisite timeframe.
On 14 February 2023, orders were made by Registrar Carney of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 19 March 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 24 July 2023.
On 3 April 2023, the parties were notified that the hearing listed above had been vacated and the hearing of the application for an extension of time had been re-listed before the Court at 11.00am on 2 October 2023.
On 30 September 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 2 October 2023), there was no appearance by or on behalf of the applicant. Ms Grace Mickle (“Ms Mickle”) 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 Mickle sought to rely on the affidavit of service of Ms Mickle deposed on 26 September 2023 and filed on 27 September 2023 (the “Mickle 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 the scheduled hearing, the Minister may seek to have the matter dismissed and may also seek costs.
Ms Mickle also sought to rely on additional correspondence from her office and sent to the applicant on 6 April 2023 (and forwarded to my chambers on the morning of the hearing, being on 2 October 2023). That correspondence reminded the applicant of the re-listed hearing date and notified him that, should he not appear at the rescheduled hearing, the Minister might seek to have the matter dismissed with costs.
Correspondence from my chambers (as set out above) was tendered and referenced as Exhibit 1.
Correspondence from Minter Ellison to the applicant dated 6 April 2023 (as outlined above) was tendered and referenced as Exhibit 2.
The Mickle affidavit was taken as read and in evidence at the hearing.
The Court asked Ms Mickle how the Minister wished to proceed in the circumstances.
Ms Mickle 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 $4,189.38.
Noting the correspondence contained in Exhibits 1 and 2 and the Mickle affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time and that he had been advised of how he 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 Mickle was prepared to make oral submissions as required by the Court 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 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: 4 October 2023
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