EDG20 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 662

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EDG20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 662

File number(s):	SYG 2243 of 2020
Judgment of:	JUDGE CLEARY
Date of judgment:	9 May 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), 17.05
Division:	Division 2 General Federal Law
Number of paragraphs:	20
Date of hearing:	29 April 2025
Place:	Parramatta
Applicant:	No Appearance
Solicitor for the Respondents:	Ms S. Edmondstone of MinterEllison Lawyers

ORDERS

SYG 2243 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EDG20

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	9 MAY 2025

THE COURT ORDERS THAT:

1.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).

2.The applicant pay the first respondent's costs in the sum of $5,900.

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 CLEARY

INTRODUCTION

1. The matter was listed before me on 29 April 2025 for the final hearing of an application for judicial review filed by the applicant and made under s 476 of the Migration Act 1958 (Cth) (Act).  The applicant sought review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 August 2020 which had Tribunal affirmed a decision of a delegate of the First Respondent (delegate) refusing to grant the applicant a Protection (Class XA) (subclass 866) visa under s 65 of the Act.

2. The applicant did not attend the final hearing of his application in this Court on 29 April 2025. For the reasons that follow, the application is dismissed under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

   FACTUAL BACKGROUND

3. The applicant, a citizen of Nepal, arrived in Australia as the holder of a student visa.

4. On 16 December 2014, the applicant applied for a Protection (Class XA) (subclass 866) visa. The applicant claimed to fear harm upon return to Nepal because he is a monarchist and will be killed by Maoists. He also claimed he would be discriminated against due to his heart condition and would die due to lack of medical treatment and services if returned to Nepal.

5. On 18 March 2016, a delegate of the first respondent refused to grant the applicant a protection visa.

6. On 13 April 2015, the applicant lodged an application to the Tribunal for review of the delegate’s decision.

7. On 21 August 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

   PROCEEDINGS IN THIS COURT

   Judicial review application and procedural orders

8. On 25 September 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 27 April 2021. The application contains four grounds of review.  They are as follows:  

   1.I disagree with the Tribunal Member's decision because the Tribunal Member committed a jurisdictional error to affirm the decision not to grant me a protection visa.

   2.I argue that the Tribunal Member overlooked my claims and evidence and made its mind not to accept and believe my fear of harm on return to Nepal.

   3.It is unfair that the Tribunal Member made its mind and simply ignored or undermined my reasons, explanations and problems in terms of my claims for a protection.

   4.I argue that the Tribunal Member deprived me of natural justice and fairness.

9. On 19 March 2025, a Registrar of this Court made an Order for the filing of any amended application, any affidavit evidence and written submissions by the applicant, and for the filing of any affidavit evidence and submissions by the first respondent.

10. On 26 March 2025, the registry sent the parties an email attaching the orders made that day and stating the date, time and location of the hearing. The registry sent the email to the applicant at his email address for service in the Application.

11. On 3 April 2025, the first respondent sent an email to the applicant at his email address for service which attached a letter. The letter again informed the applicant of the date, time and location of the hearing and stated that, if the applicant did not appear at the hearing, the first respondent may apply to have the matter dismissed under rule 13.06(1)(c) of the Rules.

12. On 17 April 2025, the Court sent a reminder email to the parties, including to the applicant at his email address for service in the Application, informing them of the date, time and location of the hearing.

13. Prior to the hearing on 29 April 2025, the applicant did not file any written submissions, or any amended application or additional evidence.

    Hearing on 29 April 2025

14. The hearing on 29 April 2025 commenced at the scheduled time of 10:15 am and concluded at around 10:40 am. The matter was called outside the court room prior to the commencement of the hearing. After the commencement of the hearing, I adjourned the Court for approximately 15 minutes to allow the applicant time to appear, in the event that the applicant was running late. At around 10:30 am the Court resumed, and the matter was called outside the courtroom again, with no appearance by the applicant.

15. Ms Sophie Edmondstone from Minter Ellison Lawyers appeared for the first respondent. At the resumed hearing the first respondent applied for an order under rule 13.06(1)(c) of the Rules, dismissing the application on the basis of the applicant’s absence from the hearing on 29 April 2025.

16. As was outlined above, on 26 March 2025, 3 April 2025 and again on 17 April 2025 the applicant was sent emails which notified him of the date, time and location of the hearing. The Court is satisfied that the applicant was aware of the date, time and location of the hearing on 29 April 2025, and he was also aware that a consequence of his non-appearance from the hearing on 29 April 2025 was that his application would be dismissed under rule 13.06(1)(c) of the Rules.

17. For the above reasons, at the hearing on 29 April 2025 the Court indicted that it would accede to the first respondent’s request to dismiss the matter under rule 13.06(1)(c) of the Rules.

18. If an event prevented the applicant from attending the hearing on 29 April 2025 and he is aggrieved that the Application was dismissed in his absence, pursuant to rule 17.05 of the Rules, he may apply to the Court to set aside the dismissal order. However, if the applicant files an application under rule 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 29 April 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.

19. If the applicant is genuinely aggrieved that the Application was dismissed in his absence, and he decides to file an application under rule 17.05:

    (a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.

    (b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.

    COSTS

20. Ms Edmondstone sought an order that the applicant pay the first respondent’s costs in the amount of $5,900. The amount sought is less than the scale amount set out in schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. I will make a costs order for this amount.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       9 May 2025