EEY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 828
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 828
File number: MLG 2014 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 8 September 2023 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – matter listed for a directions hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a) and Division 1 of Part 2 in Schedule 2
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 8 September 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms P Nirmaleswaran (by telephone) Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2014 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Counsel for the first respondent have leave to appear by audio link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be 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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
5.Written reasons for judgment to be published from Chambers at a later date.
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 KENDALL:
INTRODUCTION
This matter was listed for a directions hearing (via video link) before this Court at 3.00pm (AEST) / 1.00pm (AWST) on 8 September 2023. When the matter was called there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.Counsel for the first respondent have leave to appear by audio link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be 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).
4. The applicant pay the first respondent’s costs, fixed in the sum of $4,189.38.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter 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) (the “Rules”).
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the “Court”) on 20 September 2017 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 18 September 2017 (and filed in the Court on 20 September 2017). The applicant did not provide an email address with that application. The applicant provided a residential address for service.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Immigration Assessment Authority (the “IAA”) on 25 August 2017. In that decision, the IAA affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
On 27 May 2018, a Notice of Address for Service was filed by a legal firm on behalf of the applicant.
On 29 May 2018, orders were made by Registrar Burns of this Court, programming the matter to a final hearing (before another Judge of this Court) “on a date to be advised”.
On 2 April 2020, a Notice of Withdrawal of Lawyer (the “Notice”) was filed by the applicant’s former legal representative. Attached to that Notice was a Notice of Intention to Withdraw as Lawyer form. In both documents, the applicant’s former legal representative listed the same residential address provided by the applicant in his originating application (filed in this Court on 20 September 2017) as his known address for service.
On 9 August 2023, my chambers sent a listing notice to the parties advising them that the matter had been listed for a directions hearing (by telephone) before this Court at 3.00pm (AEST) / 1.00pm (AWST) on 8 September 2023. The listing notice was sent to the Minister by email and to the applicant by post (at the address provided by the applicant in his originating application and the applicant’s former legal representative in the Notice).
When the matter came before the Court (on 8 September 2023, by telephone), there was no appearance by or on behalf of the applicant. Ms Nirmaleswaran from Mills Oakley appeared at the direction hearing (by telephone) on behalf of the Minister.
The Court asked Ms Nirmaleswaran how the Minister wished to proceed.
Ms Nirmaleswaran advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules. She also sought the Minister’s costs, fixed in the sum of $4,189.38.
In support of that position, Ms Nirmaleswaran sought to rely on email correspondence sent to my chambers (by Ms Nirmaleswaran) on the morning of the directions hearing. That email attached correspondence sent by Ms Nirmaleswaran to the applicant by email (using an email address previously provided by the applicant). In that correspondence, Ms Nirmaleswaran reminded the applicant of the directions hearing and how he could attend. It also put the applicant on notice that, should he not appear at the scheduled directions hearing, the Minister may seek to have the matter dismissed with costs.
The listing notice sent to the applicant by my chambers was tendered and referenced as Exhibit 1.
The correspondence from Ms Nirmaleswaran to my chambers was tendered and referenced as Exhibit 2.
Noting the correspondence contained in Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the directions hearing date and time. The applicant was also properly advised in relation to how he could appear at that directions hearing and the consequences of non-appearance.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances and was the amount that the Minister was entitled to seek under the Court’s set scale (set out in Division 1 of Part 2 in Schedule 2 of the Rules).
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to this Court to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 September 2023
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