DVR22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1178
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVR22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1178
File number(s): SYG 1798 of 2022 Judgment of: JUDGE SKAROS Date of judgment: 7 November 2024 Catchwords: MIGRATION – Extension of time application Judicial Review – Decision of the Administrative Appeals Tribunal – Protection Visa – Dismissal for non-appearance – No explanation for non-appearance.
PRACTICE AND PROCEDURE – Dismissal for non-appearance
Legislation: Migration Act 1994 (Cth) ss 477(2), 426(1)
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: 8 Date of hearing: 7 November 2024 Place: Parramatta Solicitor for the Applicant: Non-appearance Solicitor for the First Respondent: Mr S Knuckey, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1798 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVR22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
7 NOVEMBER2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 30 November 2022 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).
3.The Applicant is to pay the First Respondent’s costs fixed in the amount of $ 4, 189.38.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE SKAROS:
Before me today is an application filed on 30 November 2022 seeking an order under s 477(2) of the Migration Act 1994 (Cth) (the Act) extending time for the applicant to seek judicial review of a decision of the Administrative Appeals Tribunal dated 5 January 2022, in which the Tribunal confirmed its earlier decision, made on 16 December 2021, to dismiss the applicant's review application pursuant to s 426(1A)(b) of the Act for not appearing at the scheduled hearing before the Tribunal.
In the application before the Court, the applicant provided details of their email address, being a g-mail address, as their address for correspondence. On 6 August 2024, the applicant appeared at a call-over before a Registrar of the Court. Orders were made by the Registrar that the matter be listed for an extension of time hearing and the notes to that Order indicated that the parties were put on notice that the matter may be listed for a hearing as soon as September. The Orders also provided for the applicant to file written submissions and any additional evidence by 21 August 2024.
I note those orders were sent to the parties by email. There is no record on the Court's file that indicates the applicant has filed anything in compliance with those Orders. On 24 September 2024, an email was sent to the parties that the matter was listed for an extension of time hearing before me on 7 November 2024. When the matter came before me today, there was no appearance by or on behalf of the applicant.
The matter was called outside of the Court Room three times but there was still no appearance. Mr Knuckey appeared at the hearing on behalf of the Minister. Mr Knuckey advised that the Minister sought to have the matter dismissed on the basis of the applicant's 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) and sought the Minister's costs in the fixed sum of $4,189.38.
I have considered the evidence relied upon by the Minister in support of their application for dismissal for non-appearance including the Affidavit of Mr Rieschieck attesting to the sending of correspondence to the applicant's g-mail address, being the address provided for service, and the enclosed annexures indicating that the applicant had been served with documents relating to the proceedings including the Minister's submissions. The Minister also sought to rely on the notice of listing sent by email to the parties on 24 September 2024, notifying them of the date, time, and location of the hearing, which was to be held in person before me today.
The email notifying the applicant of today's hearing was sent to the g-mail address provided as the address for service. I am satisfied on the evidence before me that the applicant was properly notified of the date, time, and location.
In relation to the costs sought by the Minister, I am satisfied that costs should follow the event, and the amount sought of $4,189.38 is reasonable in the circumstances.
For these reasons, the Court will make orders that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for ex tempore Judgment of Judge Skaros. Associate:
Dated: 8 November 2024
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