ECI19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 384
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ECI19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 384
File number(s): SYG 2721 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 17 March 2025 Catchwords: MIGRATION – Judicial review – decision not to grant a Protection (Class XA) (subclass 866) visa – 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)
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 17 March 2025 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 2721 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ECI19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The Application is 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).
2.The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the amount of $5,000.
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 KAUR-BAINS
INTRODUCTION
By application filed on 21 October 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 26 September 2019. On 24 July 2015, the applicant lodged a valid application for a class XA subclass 866 visa.
BACKGROUND
On 9 August 2019 the Tribunal sent a letter to the applicant requesting that she advise the Tribunal as to her availability to attend a hearing in the coming months. The letter was posted and also sent electronically to the addresses listed on the protection visa application (CB 87).
On 20 August 2019 the Tribunal received a Return to Sender notification and a ”postmaster undeliverable” email notification for the letter dated 9 August 2019 (CB 88 to 89).
On 30 August 2019 the Tribunal sent a letter to the applicant confirming the date, time and location of the hearing. The letter informed the applicant that if she did not attend the hearing the Tribunal may make a decision dismissing the application, without allowing the applicant another opportunity to appear or further considering the application on the information before it. The letter further notified the applicant of her ability to make an application for reinstatement of proceedings within 14 days of a dismissal decision. The letter was emailed to two email addresses and posted to both a PO Box and residential address (CB 101 to 102).
On 24 September 2019, the applicant did not appear at the scheduled hearing before the Tribunal. The Tribunal proceeded to determine the matter in the applicant’s absence and affirmed the decision under review not to grant the applicant a protection visa (CB 106 to 108).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
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;
…
PROCEEDING IN THIS COURT
By an affidavit of service affirmed by Annabelle Victoria Jean Wilford on 28 February 2025, the Minister annexes a number of correspondences to the applicant notifying the applicant as to the hearing listed before me.
On 28 February 2025, the Minister’s solicitor sent a letter by Express Post to the applicant’s last address as set out in the application for judicial review. In that letter, the Minister notified the applicant of today’s hearing date and informed the applicant that she was required to attend court in person. The Minister further in that letter set out that if the applicant did not attend, then the Minister would seek orders for dismissal and an order for costs that she pay the Minister’s legal costs of the proceedings.
The aforementioned letter has a tracking number attached to it and the Minister has not had notification that it was not delivered. I note that the evidence shows that the Minister noted that the envelope in which the letter was contained noted that if it was undeliverable, then it was to be returned to Sparke Helmore.
The matter was called three times outside of the courtroom at 2:12pm on 17 March 2025. At 2:25pm on the same day, the applicant was still not present in Court.
I am satisfied that the applicant was notified of the hearing before me and that for whatever reason, she has chosen not to attend. I am further satisfied that the non-attendance has occurred in circumstances where the applicant was put on notice by the first respondent as to the consequences of that failure.
CONCLUSION
In all the circumstances, I dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules consequent upon the non-appearance of the applicant.
COSTS
The Minister seeks an order that the applicant pay costs fixed in the amount of $5,000. Given that the matter was listed before me for a final hearing and the Minister has filed submissions opposing the judicial review grounds and filed a Court Book in these proceedings, which consisted of 123 pages, I am satisfied that costs should follow the event and the amount sought is reasonable.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 17 March 2025
0
0
1