DSA18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1366
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSA18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1366
File number(s): MLG 2070 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 10 December 2024 Catchwords: MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application 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) Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 10 December 2024 Date of hearing: 10 December 2024 Applicant: No appearance Counsel for the First Respondent: Mr A. Gardner Counsel for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2070 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSA18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 17 July 2018 by the applicant is 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) (Rules).
4.The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $5,400.00
AND THE COURT NOTES THAT:
A.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
(revised from transcript)JUDGE CUTHBERTSON
INTRODUCTION
This matter was listed for a hearing before the Court at 10:00am on 10 December 2024. When the matter commenced, there was no appearance by or on behalf of the applicant. The first respondent’s representative sought dismissal of the application for non-appearance.
In the circumstances, the Court made the following orders:
1. The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2. The name of the second respondent be amended to “Administrative Review Tribunal”.
3. The application filed on 17 July 2018 by the applicant is 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) (Rules).
4. The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $5,400.00
These reasons explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules.
BACKGROUND
The applicant, a citizen of Malaysia, applied for a Protection (Subclass 866) visa on 15 November 2016. Her claim was based on being discriminated against due to being a native of Sabah Sarawak and on the basis of her Christian faith. She also claimed to have been targeted by the government due to her involvement in activities arguing for Sabah Sarawak rights and being in danger because of migrant criminal groups.
That application for a visa was refused by a delegate of the first respondent on 31 March 2017. The applicant then applied to the Administrative Appeals Tribunal for merits review of the decision on the 7 April 2017. On 21 June 2018, the Tribunal affirmed the delegate's decision. Subsequently, the applicant applied for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). That application was made on 17 July 2018. The Minister opposed the application.
The relevant procedural background is as follows. The application for judicial review and the affidavit filed in support were completed in handwriting. An email address was provided as a form of contact for the applicant. That email handle appears to end with “b88”. It is clear from a perusal of the Court's file that at times, the registry has read that email handle as saying “688”.
Importantly, on 14 March 2024, the registry emailed a notice of listing for callover to the parties. That initial email was sent to the email handle ending with “688”. Subsequent emails from the migration team indicates that delivery of that email was unsuccessful. It was re-sent to the applicant on 15 March 2024 at the b88 email address. A further notice of listing was sent on 21 March 2024 to the applicant at the b88 email address as there had been a typographical error in the original notice of listing.
In an abundance of caution, the notice of listing was also express posted to the applicant at her postal address for service. There were instructions given to effect the postage of that notice of listing to the postal address for service on 14 March 2024 and again on 20 March 2024. On 28 March 2024, a callover occurred in respect of the matter. The applicant appeared by telephone.
The applicant also confirmed at the callover that she had received the Court Book. I do not have an affidavit of service before me, but it suggests the first respondent had been able to effect service of the court book at some time prior to 28 March 2024. It is not apparent from the orders which of the means of communication with the applicant succeeded in letting her know of the callover date.
This matter was allocated to me in October this year. A notice of listing was sent to the parties in respect of it on 21 October 2024. Unfortunately, that notice of listing was sent to the 688 email address, rather than the b88 email address. The migration team received an undeliverable notice that same day. Instructions were given to send the notice of listing by post to the applicant’s notice of postal address for service which was the same one that had been utilised to send the listing notices for the call over. There is an email chain on the court file setting out those instructions. On 20 November 2024, the registry also re-sent the original emailed notice of listing to the b88 email address. The email accompanying that recent notice states the following:
Resending the below correspondence as there may have been a typographical error in the applicant's email address. I also note that the Notice of Listing was posted to the applicant's last known residential address as indicated on their originating documents on 21 October 2024.
On 27 November 2024, an email was sent to the Migration Team referring to correspondence which was returned to sender at the Melbourne Registry. Inquiries with the registry have confirmed that the notice that was returned to sender was the physical notice that was sent to the applicant’s last known postal address for service. A Client Service Officer in the Migration Team has confirmed in an email dated 3 December 2024 that the notice of listing was posted out to the applicant on the morning of 21 November 2024. This was done by regular mail, so no tracking reference was available. It was reiterated that the email of the notice was re-sent to the corrected email which did not appear to have bounced back.
In addition, I have been provided an email that was sent by Mr Gardner, who appears today on behalf of the first respondent. That email was sent on 26 November 2024 to the b88 email address. It states as follows:
We attach by way of service a sealed copy of the first respondent's submissions filed in the Federal Circuit and Family Court of Australia on 25 November 2024.
This matter has been listed for hearing on 10 December 2024 at 10 am in person before Judge Cuthbertson.
Please note that you are required to attend the scheduled hearing and if there is no appearance by you or on your behalf, then the first respondent may seek orders that your application be dismissed with costs.
It is apparent from the email that there was an attachment to it with this title "DSA18 - First Respondent's submissions dated 25 November 2024 sealed.pdf ”.
The present time is now 10:32am and the applicant is still not present in court. The notice of listing advised that the matter would commence at 10:00am in the Federal Circuit and Family Court of Australia, at the Commonwealth Law Courts Building, 305 William Street, Melbourne, Victoria. The notice of listing also indicates the mode of hearing is in-person. I am satisfied that the applicant was notified of today's hearing date by the court at the Gmail address nominated by the applicant as her email address for service. I accept that has not happened until 20 November 2024. I am also satisfied however that the notice of listing was also posted to the applicant's postal address for service nominated by her in both her application and affidavit filed in support. I acknowledge that the notice of listing appears to have been returned to sender.
Nevertheless, it is the only postal address the applicant has provided for those purposes. In the circumstances, I am satisfied the applicant has had proper notification of the hearing but has chosen not to attend. I note in particular that this non-attendance has occurred in circumstances where the first respondent has emailed the applicant to what we understand to be the correct email address, the b88 email address, reconfirming the time and date of the hearing and that it is an in-person hearing, but more importantly, advising of the consequences of a failure to appear on that date. In all of the above circumstances, I am prepared to dismiss the proceedings pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) as a consequence of the applicant’s non-appearance.
CONCLUSION
The Minister seeks an order that the applicant pay costs fixed in the amount of $5,400.00. I am satisfied that the cost should follow the event. I am also satisfied that the amount sought is a reasonable indemnity in the circumstances. I note that the sum of $5,400.00 falls well below the scale of costs for matters concluded at final hearing. Mr Gardner and his client have had to prepare for today's hearing and there appears to be no reason for there to be any departure from the usual order in the circumstances.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 10 December 2024
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