Ehx19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 875

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EHX19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 875

File number:	MLG 3787 of 2019
Judgment of:	JUDGE GOSTENCNIK
Date of judgment:	4 September 2024
Catchwords:	MIGRATION – protection visa application – applicant’s non-attendance at final hearing – application dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Division:	Division 2 General Federal Law
Number of paragraphs:	10
Date of hearing:	4 September 2024
Place:	Melbourne
Counsel for the Applicant:	No appearance by or on behalf of the applicant
Solicitor for the First Respondent:	Ms Baris-Miller of Australian Government Solicitors
Counsel for the Second Respondent:	The second respondent filed a submitting appearance

ORDERS

MLG 3787 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EXH19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	4 SEPTEMBER 2024

THE COURT ORDERS THAT:

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

2.The application for judicial review made by the applicant on 1 November 2019 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.

3.The applicant pay the first respondent's costs in the sum fixed at $3900.

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 Gostencnik

1. By an application made on 1 November 2019, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) in which the Tribunal affirmed a decision of the delegate of the then first respondent not to grant the applicant a protection visa.  The applicant is a Malaysian national and arrived in Australia on 23 June 2016. He applied for a protection visa on 20 September 2016.  The delegate for the Minister refused the application for a protection visa on 10 February 2017, and the applicant sought Tribunal review of that decision by an application made on 27 February 2017. 

2. The applicant was subsequently invited to attend a hearing before the Tribunal, which was scheduled for 9 September 2019.  The applicant attended and gave some evidence and presented some arguments with the assistance of an interpreter.  As I apprehend, during those proceedings, the applicant raised some further matters in response to questions by the Tribunal, the effect of which was to require a further hearing, and the hearing on 9 September 2019 was adjourned for a further hearing on 7 October 2019.  Subsequently, the applicant was invited to attend that hearing. 

3. Both the first and second hearings were conducted by use of video conferencing facilities, the applicant having moved to Melbourne and the Tribunal member sitting in Perth. 

4. The applicant attended a callover of his matter before Registrar Cummings on 25 March 2024 by telephone and appeared with the assistance of a Malay interpreter.  The Registrar made several orders including requiring the applicant to file and serve written submissions, an amended application with proper particulars, and any additional evidence on which the applicant would seek to rely. The orders also contemplated that the application would be fixed for hearing on a date to be confirmed. 

5. In the applicant's judicial review application, the applicant specified an email address which I will not repeat but is the email address at which documents could be served. 

6. By email correspondence from the Court’s Migration Team dated 9 August 2024, the applicant was sent a notice of listing to the email address specified in the application as the email address for service.  That correspondence advised the applicant that there would be a final hearing before me on Wednesday, 4 September 2024 at 10:00 am.  The notice also specified that the mode of hearing would be in person and the address of the Melbourne registry of the Court at which the applicant should attend.  At the commencement of the matter this morning, the applicant did not attend and entered no appearance.  There has not been any correspondence received by the Court seeking an adjournment or explaining the absence of the applicant. 

7. The matter was adjourned for 15 minutes to allow my associate to make enquiries as to the applicant's whereabouts. The applicant did not present to the registry of the Court. The registry has not received any communication from the applicant, and my associate endeavoured on two occasions to call the applicant on the mobile phone number recorded in the Court's file but to no avail. The Minister seeks an order that the application be dismissed because of the applicant's failure to attend the hearing. In the circumstances, absent any explanation and given the history of this matter, I am satisfied that it is appropriate that an order be made pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 and I will do so.  

8. The name of the Minister has changed on several occasions since these proceedings were commenced and, most recently, in the middle of this year.  It is appropriate to also make an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. 

9. The Minister also seeks his costs in the fixed sum of $3900.  Given the history of this matter and the fact that the Minister has had to prepare for and has, by his counsel, attended the final hearing, the costs sought are modest, I am inclined to make an order for the applicant to pay the Minister's costs in the fixed sum of $3900.

10. I note that the applicant can apply to have his application reinstated pursuant to rule 17.05(2)(a) of the Rules

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       12 September 2024