DVZ18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 193

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DVZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 193

File number:	SYG 2069 of 2018
Judgment of:	JUDGE CAMERON
Date of judgment:	8 February 2024
Catchwords:	PRACTICE & PROCEDURE – application for dismissal – non-appearance of the applicant.
Legislation:	Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.06
Division:	General
Number of paragraphs:	8
Date of hearing:	8 February 2024
Place:	Sydney
Counsel for the Applicants:	No appearance by or on behalf of the applicants
Solicitor for the First Respondent:	Mills Oakley
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 2069 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DVX18
First Applicant

DVY18
Second Applicant

DVZ18
Third Applicant

DWA18
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	8 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) the application be dismissed.

2.The third applicant pay the first respondent’s costs fixed in the amount of $5,400.

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 Cameron

INTRODUCTION

1. This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal made on 4 July 2018, in which the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicants protection visas.

2. On 5 July 2023, the registrar dismissed the second applicant's application for non-attendance. The fourth applicant filed a notice of discontinuance on 25 January 2022.  On 16 December 2019, a notice of discontinuance was filed which, on 5 July 2023, the registrar considered to have been filed by the first respondent. The matter has proceeded today on the basis that the third applicant is the only remaining applicant in the proceeding.

   LEGISLATION & RULES

3. Rule 13.06 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides relevantly:

   13.06 Default of appearance of a party

   (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

   …

   (c)if the absent party is an applicant—dismiss the application;

   …

   NOTICE OF DISCONTINUANCE

4. I doubt the correctness of whether the registrar's conclusion that the notice of discontinuance was intended, or was effective, to discontinue the first applicant's proceeding was correct. The notice itself states that it seeks to discontinue the proceeding brought by the second applicant, but it appears to have been signed by the first applicant. It is not clear on what basis the registrar concluded that the first applicant intended to discontinue his part of the proceeding and that the reference to the second applicant was a mistake. However, that issue does not need to be resolved today.

   APPLICATION FOR DISMISSAL

5. On 29 November 2023, the Court wrote to the parties advising that the matter would be listed for hearing today at 11:00am. The Court sent a further email to the parties on 2 February 2024, again advising them of today's hearing date. Relevantly, that email was sent to the email address provided for all the applicants in the initiating application. When the matter was called on this morning, there was no appearance by or on behalf of any of the applicants. The matter was stood down for 32 minutes to take account of simple tardiness on their parts.  

6. During the adjournment, the matter was called on the ground floor, the eighth floor, the ninth floor and the 11th floor of the building in which the Court is presently sitting, namely 80 William Street, Sydney. The matter was also called at the registry on level 17, Law Courts Building, Queens Square. I am informed that there was no answer to any of the calls. When the matter returned to court after the short adjournment, there was no appearance by or for any of the applicants. In the circumstances, the Minister has sought dismissal of the proceeding pursuant to r.13.06(1)(c) of the Rules. I see no reason why the relief sought by the Minister should not be granted and there will be an order dismissing the proceeding in accordance with that rule.

7. In reaching that conclusion it should be noted, to the extent that the first applicant remains a party to the proceeding, that that order will apply to him as much as to the third applicant. This is because, as I have already recounted, the Court's emails were sent to the email address applicable to all the parties in this proceeding. Accordingly, it can be taken that the first applicant was properly notified of the listing, which was important regardless of whether he considered himself a party to the proceeding or not. If he had considered himself a party to the proceeding, then he could well have attended, or at least contacted the Court to explain why he could not.

   CONCLUSION

8. Consequently, the application will be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       29 February 2024