Eaz17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 587
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EAZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 587
File number(s): MLG 1952 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 22 July 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for 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: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 22 July 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1952 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EAZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 JULY 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs fixed in the sum of $7,467.
5.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 final hearing at 12.00pm on 22 July 2022. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs fixed in the sum of $7,467.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 11 September 2017 (the “application”). The application was accompanied by an affidavit which was affirmed and filed by the applicant on 11 September 2017.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). The applicant seeks review of a decision made by the Administrative Appeals Tribunal on 29 August 2017.
On 16 May 2018, orders were made by Registrar Burns in this Court programming the matter to a hearing before Judge McNab (as he then was) on 20 November 2020.
On 28 August 2018, the Court notified the parties that the hearing on 20 November 2020 had been vacated and adjourned to a date to be fixed.
On 5 November 2021, Judge Lucev’s chambers notified the parties that the matter had been listed for a directions hearing on 19 November 2021.
On 19 November 2021, the parties appeared at the directions hearing before Judge Lucev via video link. Amended programming orders were made and the matter was listed for a hearing via video link on 18 July 2022.
On 29 June 2022, my chambers notified the parties that the hearing listed on 18 July 2022 had been vacated and that the matter had been re-listed for hearing on 22 July 2022 at 2.00pm (AEST) / 12.00pm (AWST).
On 14 July 2022, the parties were reminded by my chambers of the date, time and location of the hearing and the parties were also provided with instructions for attendance at that hearing by video link using Microsoft Teams.
As outlined above, when the matter came before the Court (on 22 July 2022), there was no appearance by or for the applicant. Mr Anastasi appeared for the Minister at the hearing.
Mr Anastasi took the Court through correspondence from his office to the applicant serving various documents. That correspondence, together with the other correspondence from my chambers outlined above, was tendered and referenced as Exhibit 1.
The Court asked Mr Anastasi how the Minister wished to proceed in the circumstances.
Mr Anastasi advised the Court that the Minister sought to have the matter 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $7,467.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and advised of what he needed to do to participate in 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 Mr Anastasi was prepared to make oral submissions as required by the Court.
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 nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 July 2022
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