Ego18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EGO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 226

File number(s):

SYG 2300 of 2018

Judgment of:

JUDGE CAMERON

Date of judgment:

9 February 2024

Catchwords:

PRACTICE & PROCEDURE – Application for dismissal – non-appearance of the applicant.

Legislation:

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

Australian Citizenship Act 2007 (Cth) s.12

Division:

General

Number of paragraphs:

6

Date of hearing:

9 February 2024

Counsel for the Applicants:

No appearance by or on behalf of the applicants

Solicitor for the Respondent:

MinterEllison appeared for the respondent

ORDERS

SYG 2300 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EGO18

First Applicant

EGP18

Second Applicant

EGQ18

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	9 FEBRUARY 2024

THE COURT ORDERS THAT:

1.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 application be dismissed.

2.The first and second applicants pay the respondent’s costs in the amount of $5,227.

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 Cameron

INTRODUCTION

1. This matter was commenced on 17 August 2018 by an application seeking judicial review of the decision of a delegate of the respondent (Minister) to refuse protection visa applications made by the applicants in this proceeding on the basis that the applications were invalid. Yesterday, the first and the second applicants filed, by leave, a notice of discontinuance. The proceeding remained on foot in relation to their daughter, the third applicant, who is a minor. When the matter was called outside the Court today there was no appearance by or on behalf of the third applicant.

   LEGISLATION & RULES

2. Rule 13.06 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides relevantly:

   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;

   …

   APPLICATION FOR DISMISSAL

3. In the circumstances, the Minister has sought dismissal of the matter pursuant to r.13.06(1)(c) of the Rules. In support of that application, he relies on a letter from his solicitors, MinterEllison, to the applicants dated 4 December 2023 in which they were advised that if they did not appear the Minister might apply for such an order. The fact that the applicants were aware of the listing today was made plain by the notice of discontinuance filed yesterday.

4. It should also be noted that, apparently as a result of the effluxion of time and the operation of s.12 of the Australian Citizenship Act 2007 (Cth), the third applicant is now an Australian citizen. Therefore, the application as far as she is concerned is otiose.

   CONCLUSION

5. It is convenient and proper in the circumstances that the matter be dismissed and that it be dismissed pursuant to r.13.06(1)(c) of the Rules.

   COSTS

6. The Minister has also sought his costs as against the first and the second applicants, and in this regard, I note that the first applicant is the litigation guardian of the third applicant. There is no reason that appears to me that costs should not follow the event as they would in the ordinary course. The Minister seeks an amount of $5,227 which Mr McLaurin, who appears for him today, advises me is the relevant scale amount. This matter was, as I said, commenced in 2018 and so the scale has changed considerably in the meantime, and no doubt some preparation was done more recently, which would ordinarily attract some consideration for a higher scale amount.  In all the circumstances, I am satisfied that it is reasonable to award the Minister the costs he seeks.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       8 March 2024