DXV22 v Minister for Immigration, Citizenship & Multicultural Affairs

Case •

[2024] FedCFamC2G 1185

•

13 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DXV22 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 1185   

File number(s): SYG 1856 of 2022
Judgment of: JUDGE ZIPSER
Date of judgment: 13 November 2024
Catchwords:  MIGRATION – dismissal for non-appearance  
Legislation:

 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)

Migration Act 1958 (Cth) s 36(2), s 65

Division: Division 2 General Federal Law
Number of paragraphs: 17
Date of hearing: 31 October 2024
Place: Parramatta
Applicant: No appearance
Solicitor for the Respondents: Tahlia Jackson of Minter Ellison

ORDERS

SYG 1856 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DXV22

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

13 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

3.The applicant pay the first respondent’s costs fixed in the sum 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).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

  1. On 8 December 2022, the applicant lodged an application for an extension of time in which to seek judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision by the Administrative Appeals Tribunal (Tribunal) dated 18 October 2022. The Tribunal determined that it did not have jurisdiction in the matter.

  2. The applicant did not attend the hearing in this Court listed on 31 October 2024. For the reasons that follow, the application is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

    FACTUAL BACKGRIOUND

  3. On 2 February 2018, the applicant lodged an application for a Protection (class XA) (subclass 866) visa.

  4. On 17 March 2022, a delegate of the first respondent refused to grant the visa on the basis that the applicant did not satisfy subsection 36(2) of the Act, which requires an applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations.

  5. On 5 July 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal, approximately 2.5 months out of time.

  6. On 12 July 2022, the Tribunal invited the applicant to comment on the validity of her application to the Tribunal.

  7. On 26 July 2022, the applicant provided a reply to the invitation to comment.

  8. On 18 October 2022, the Tribunal made a decision that it did not have jurisdiction to hear the application because the application to the Tribunal was lodged out of time.

    PROCEEDINGS IN THIS COURT

    Application and steps up to 30 October 2024

  9. On 8 December 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 18 October 2022. The application included four grounds as follows (reproduced as written):

    1.THE TRIBUNAL OFFICER REFUSED MY APPLICATION BECAUSE THEY COULD NOT SATISFIED MY EVIDENCE TO SUPPORT MY CLAIMS.

    2. THE TRIBUNAL OFFICER DID NOT ACCEPT THAT I WAS PERSECUTED BY CHINESE GOVERNMENT. BUT I SHOULD SAY THERE IS REALLY NO HUMAN RIGHTS IN CHINA.

    3. I HAVE BEEN OUTSIDE CHINA FOR SUCH A LONG TIME. AND DUE TO COVID-19 I COULD NOT AFFORD TO GO BACK.

    4. AFTER STAYING IN AUSTRALIA FOR YEARS, I LOVE IT SO MUCH. AND I HAVE INDIRECTLY MADE CONTRIBUTIONS TO THIS COUNTRY. I HOPE I COULD STAY HERE.

  10. On 8 August 2024, a registrar made orders that the applicant file and serve the following on or before 23 August 2024:

    (a)any amended application giving proper particulars of the grounds of the application;

    (b)any affidavit evidence; and

    (c)written submissions.

  11. The applicant did not take up the opportunity to provide the Court with a written submission.

    Hearing on 31 October 2024

  12. The hearing on 31 October 2024 commenced at the scheduled time of 10:15 am and concluded shortly after 10:35 am. The applicant did not appear at the hearing. The matter was called outside the court room twice between 10:15 am and 10:35 am.

  13. Tahlia Jackson from Minter Ellison appeared for the first respondent. She requested that the application be dismissed under rule 13.06(1)(c) of the Rules. Ms Jackson tendered an email from the applicant to an employee of Minter Ellison sent at 5:14 pm on 30 October 2024 which stated (verbatim):

    Dear Chantelle,

    I am writing to inform you that I would like to withdraw the application.

    Regards,

    [redacted]

  14. The Court’s file indicates that on 12 September 2024 the Court sent an email to the applicant informing her of the date and location of the hearing on 31 October 2024. The Court sent the email to the email address provided by the applicant in her application filed on 8 December 2022, which was the same email address used by the applicant on 30 October 2024, and also on 8 August 2024 when the applicant sent an email to the Court asking for “a confirmation letter from the court stating that I am eligible to apply for a Medicare card”.

  15. The Court is satisfied that the applicant was aware of the date and location of the hearing on 31 October 2024.

  16. For the above reasons, the Court accedes to the request of the first respondent to dismiss the matter under rule 13.06(1)(c) of the Rules.

    COSTS

  17. Ms Jackson sought an order that the applicant pay the first respondent’s costs in the amount of $4,189.38. This amount appears fair and reasonable. The Court will make a costs order in this amount. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       13 November 2024

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