EDJ19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1415

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EDJ19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1415   

File number(s):	SYG 2741 of 2019
Judgment of:	JUDGE DOUST
Date of judgment:	16 December 2024
Catchwords:	MIGRATION  — Judicial review  — protection visa  — non‑appearance of applicant  — default judgment —  leave for notice of discontinuance refused —  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:	15
Date of hearing:	16 December 2024
Place:	Sydney
Solicitor for the Applicant:	No appearance by, or on behalf of, the Applicant
Solicitor for the Respondents:	HWL Ebsworth Lawyers

ORDERS

SYG 2741 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EDJ19

Applicant

AND:

MINISTER FOR IMMIGRATION  AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DOUST
DATE OF ORDER:	16 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application be 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 $5600.

3.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. 

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

(Ex tempore, revised from transcript)

JUDGE DOUST:

1. I have before me an application by the first respondent for an order to dismiss the application which is before the Court. The first respondent proceeds, pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the rules). 

2. The application in this matter was commenced on 22 October 2019 and concerns a decision of the Administrative Appeals Tribunal (as it was then known) made on 25 September 2019.

3. The application was listed for hearing before me today, 16 December 2024 at 10.15 am.

4. The applicant was not in the Court when the matter was initially called at about 10.25 am.  The applicant did not appear when the matter was called outside the court at about 10.27 am.

5. In default of the applicant's appearance, the first respondent now proceeds with its application.  I am satisfied that it is appropriate to dismiss the application.

6. I am satisfied that the first respondent was made aware that the matter was listed for hearing today by an email sent by this Court to the applicant on 28 October 2024.  The email was sent to the applicant at the email address which was nominated on the originating application.  The email identified today's date, a commencement time of 10.15 am, and courtroom 8.2. 

7. In addition to that notice, I have also been provided with an affidavit of Sophia Russo, affirmed 10 December 2024, which annexes correspondence from the first respondent's representatives to the applicant.

8. In particular, that affidavit annexes an email from Ms Russo to the applicant on 28 October 2024, which email forwards to the applicant the email sent by the Court to the applicant earlier that day and also attaches a further document relevant to the first respondent's submissions that were filed in the Court on 20 August 2024.

9. I am satisfied that, by this further email to the applicant's email address, a further means of notifying the applicant of the hearing date set down in this matter, was employed by the respondent. 

10. Ms Russo's affidavit also annexes an email dated 10 December 2024 to the email address nominated by the applicant in the application.  That email advises in the first paragraph that the applicant's application has been listed for a final hearing before me on Monday, 16 December 2024, at 10.15 am. The email goes on to state as follows:

    Please note that this is an in-person hearing at 80 William Street, Woolloomooloo, New South Wales, 2011 (as mentioned in the Court's email below).  You, or your representative, must appear at the hearing.  If you cannot appear, please advise the Court of this as soon as possible.  If you do not appear, we, the first respondent, will be seeking that your application be dismissed for non-appearance and ask that a costs order to be made against you.  Please contact me if you have any questions.

11. That email also forwarded the email listing notice from this Court sent on 28 October 2024 to which I referred previously.

12. I am satisfied, in the circumstances, that both the Court and the first respondent, between them, on several occasions, have brought to the applicant's attention the fact that his application was listed for hearing in this Court today.

13. There has been no communication from the applicant to the first respondent in response to its communications with the applicant about the listing of the matter for hearing.  The applicant has not communicated with the registry of this Court to indicate any reason why he was unable to attend the hearing of his matter today, for example, because of sickness or some other difficulty.

14. It is now 10.49 am.  I will pause in the recitation of my reasons to ask that the matter be called again outside.  The matter has been called again at 10.50 am.  In all of the circumstances, I'm satisfied that it is appropriate to make an order dismissing the application in the absence of the applicant and I so order.  The first respondent has also sought an order that the applicant pay its costs in the fixed sum of $5600.  It appears to me, in the circumstances, that is an appropriate amount or a fair and reasonable amount and I so order.

15. Subsequent to the delivery of the above reasons ex tempore, the registry brought to the attention of my Chambers that the applicant had purported to lodge with the Court a Notice of Discontinuance on 13 December 2024.  As the applicant sought to file that notice within 14 days of the day fixed for the final hearing, the applicant was not entitled to file that document without having the leave of the Court.  Such leave was not sought by the applicant, and I do not grant it. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the extempore Reasons for Judgment of Judge Doust.

Associate:

Dated:       16 December 2024