Ecb17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 506

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ECB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 506

File number(s):

MLG 2025 of 2017

Judgment of:

JUDGE LUCEV

Date of judgment:

22 June 2022

Catchwords:

MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – dismissal for non-appearance
PRACTICE AND PROCEDURE – Dismissal for non-appearance

Legislation:

Migration Act 1958 (Cth) s 476

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

Division:

Division 2 General Federal Law

Number of paragraphs:

7

Date of hearing:

22 June 2022

Place:

Perth

For the Applicant:

Did not participate

Counsel for the First Respondent:

Mr J. Mintz

Solicitor for the First Respondent:

Clayton Utz

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2025 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ECB17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	22 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The originating application filed on 20 September 2017 be dismissed for non-appearance 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 pay the First Respondent’s costs in the sum of $7,467 by 22 July 2022.

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
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. This is an application for judicial review filed by the applicant, ECB17, on 20 September 2017 in the Melbourne Registry of this Court (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 31 August 2017. The Tribunal Decision affirmed a decision of a delegate of the first respondent, then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant ECB17 a Protection (Class XA) (Subclass 866) visa.

2. There are four unparticularised grounds in the Judicial Review Application, and an affidavit filed with the Judicial Review Application that merely annexes the Tribunal Decision.

3. On 30 May 2018 orders were made by a Registrar of this Court in the Melbourne Registry, setting in place certain procedural orders and an order for the hearing to be listed before a Melbourne-based Judge of this Court on 20 July 2020.

4. On 12 September 2019 the Associate to Judge Kelly in the Melbourne Registry advised the parties that the matter had been transferred to something which is described as the “Melbourne Migration Docket”, and that a new listing date would be “notified in due course”. That did not come to pass until such time as the Judicial Review Application was allocated to the Perth Registry in early November 2021.

5. On 19 November 2021, a directions hearing was held, at which ECB17 did not appear and the matter was, by order, listed for final hearing by video link on 22 June 2022 before the Court as presently constituted (“November Orders”). Orders were also made for costs to be reserved, and a note was appended to the November Orders, that if ECB17 did not appear at the final hearing today, the originating application may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”).

6. The Court is satisfied that the relevant notices and confirmation of listing, and the November Orders were sent to email addresses for ECB17. The Court notes that ECB17 has not appeared at the hearing today.

7. ECB17 has not dialled in for the video link in accordance with the most recent advice on notice to him as to how that can be done for today’s hearing, and the Court is also advised that two calls to ECB17’s mobile number listed in the Judicial Review Application are simply going through to message bank. In those circumstances and in accordance with the note to the November Orders, the Minister seeks orders for the originating application to be dismissed pursuant to r 13.06(1)(c) of the GFL Rules and seeks costs in the amount of $7,467. In the circumstances, the Court is satisfied that the orders sought by the Minister are appropriate, and those orders will be made together with an order for a name change for the Minister.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       22 June 2022