EBG19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 919

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EBG19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 919

File number(s):	MLG 3579 of 2019
Judgment of:	JUDGE CORBETT
Date of judgment:	11 September 2024
Catchwords:	MIGRATION – protection visa – where applicants failed to attend – application dismissed.
Legislation:	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 last submission/s:	11 September 2024
Date of hearing:	11 September 2024
Place:	Melbourne
Solicitor for the Applicants:	The Applicants did not appear
Advocate for the First Respondent:	Ms Baras-Miller
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	The second respondent filed a submitting appearance

ORDERS

MLG 3579 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EBG19

First Applicant

EBH19

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CORBETT
DATE OF ORDER:	11 SEPTEMBER 2024

THE COURT ORDERS THAT:

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

2.Pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application for judicial review filed 18 October 2019 is dismissed.

3.The applicants pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $3,000.

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
(revised from transcript)

JUDGE CORBETT:

1. These are the reasons for judgment delivered ex tempore on 11 September 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the court.

2. By an application for review filed 18 October 2019, the applicants seek review of a decision of the Administrative Appeals Tribunal (Tribunal) made 23 September 2019, whereby the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection, as it then was known (first respondent). The delegate decided to refuse the grant of the applicants’ protection class 5A subclass 866 visas, being protection visas. 

3. The background of the application is set out in paragraphs [1] to [5] and [6] to [9] of parts II and III of the first respondent’s Outline of Submissions, which is exhibit R3. I will not repeat that background.

4. The application for judicial review was first filed on 18 October 2019 and supported by an affidavit by the first applicant of the same date. Subsequently, there was a response filed by the first respondent. In accordance with orders made on 25 March 2024 by Registrar Cummings, a court book and outline of submissions were filed by the first respondent on 13 February 2024 and 19 April 2024. In an affidavit of service affirmed by Ms Mary Margaret Baras-Miller on 4 September 2024, the first respondent confirmed service of both the court book and the outline of submissions on the applicants at the email address given as their address for service. I am satisfied that both applicants have been given notice of the hearing today by the court and by the solicitors acting on behalf of the first respondent.

5. The time is currently 10.30 am, and the applicants are still not present in court. I have had the matter called three times outside court and there is still no appearance. Having been satisfied that the applicants have been given notice of today’s hearing by email and by the solicitors for the first respondent, I am satisfied that the non-attendance has occurred in circumstances where the applicants were put on notice and are well aware of the hearing today.

6. In all of the circumstances, I am prepared to dismiss the proceeding, pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, for non-appearance at the hearing today. 

7. The first respondent has sought its costs of the application to date in the sum of $3,000, which is less than the applicable scale, and there is no reason to query that sum. I propose to make an order to the effect that the applicants pay those costs in that amount. 

8. The solicitor for the first respondent has also indicated that it is necessary to now change the title of the proceedings and the name of the first respondent to Minister for Immigration and Multicultural Affairs. I will make an order to that effect.

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

Associate:

Dated:       11 September 2024