EKN24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 374
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKN24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 374
File number: PEG 221 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 7 March 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a directions hearing – no appearance by or on behalf of the applicant – application dismissed 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). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9.03(1), 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 7 March 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 221 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKN24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.Written reasons for judgment will 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 before the Court at 2.30pm on 7 March 2025. 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.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 which was filed in the Perth Registry of this Court on 1 July 2024 on behalf of the applicant (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant (on 28 June 2024) and filed in this Court on 1 July 2024. The application was filed on behalf of the applicant by his (then) solicitor.
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 then Administrative Appeals Tribunal (the “Tribunal”) on 27 May 2024. In that decision, the Tribunal confirmed its earlier decision (made on 10 May 2024) dismissing the applicant’s application for review of a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa. The Tribunal had dismissed the applicant’s review application because the applicant failed to appear at a scheduled hearing before it.
On 30 August 2024, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”. The orders also required that the applicant file and serve written submissions, any amended application (with proper particulars of the grounds of the application) and any additional evidence at least 14 days prior to the hearing of the matter. The Minister was required to file written submissions seven days prior to the hearing.
The matter was listed for a final hearing before this Court on 13 February 2025.
The applicant’s material should have been be filed by 30 January 2025 (as required by order 5 of the orders made by Registrar Downing on 30 August 2024). Unfortunately, no materials were filed on behalf of the applicant by that date (or at all).
Written submissions were filed on behalf of the Minister on 6 February 2025.
When the matter came before this Court for the scheduled final hearing (on 13 February 2025), the applicant’s (then) solicitor advised that his “last meeting” with the applicant was on 2 January 2025. The applicant’s solicitor also advised that the applicant was “fully aware of the hearing date” and that he had been unable to contact the applicant since that last meeting.
The Court expressed its disappointment that the applicant’s solicitor had failed to communicate that information with the Court or with the Minister’s representative ahead of the hearing and that he had failed to respond to correspondence from both the Court and the Minister’s representatives.
The applicant’s solicitor apologised and indicated that, as he did not have any instructions from the applicant, he wished to remove himself from the record.
The Court adjourned the hearing to allow the applicant’s solicitor time to come off the record, advise the applicant accordingly and give the applicant an opportunity to appear before the Court in his own right.
The Court advised that that matter would be listed for a directions hearing on 7 March 2025 at 2.30pm and made orders as follows:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
3.The application for judicial review filed by the applicant on 1 July 2024 be amended to include seeking:
(a) a writ of mandamus directed to the second respondent; and
(b)review of the Non-Appearance Decision of the Administrative Appeals Tribunal dated 10 May 2024.
4.The applicant’s representative file and serve (on the applicant and the first respondent) a notice of intention to withdraw as solicitor in accordance with r 9.03(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) by no later than 21 February 2025. The notice of intention to withdraw should include the last known residential address and email address for the applicant.
5.The applicant’s representative file and serve (on the applicant and the first respondent) a notice of withdrawal of solicitor by no later than 28 February 2025.
6.The matter be listed for a directions hearing before this Court on 7 March 2025 at 2.30pm.
7.The applicant’s representative serve a copy of these orders on the applicant by close of business on 14 February 2025.
8.The applicant pay the first respondent’s costs thrown away, fixed in the sum of $500.
On 13 February 2025 (following the hearing), my chambers sent the parties a copy of the orders (outlined above) and a listing notice in relation to the directions hearing (listed before this Court on 7 March 2025).
On 17 February 2025, my chambers contacted the applicant’s (then) solicitor to request confirmation that the orders made by this Court (at the hearing on 13 February 2025) had in fact been served on the applicant as required by order 7 of those orders.
Later that same day (also on 17 February 2025), the applicant’s solicitor confirmed that the orders had been served on the applicant at the applicant’s “last known address”. The applicant’s solicitor also advised that he had informed the applicant that a notice of intention to withdraw as his solicitor would be filed with the Court by 21 February 2025.
On 21 February 2025, the applicant’s solicitor filed a “Notice of Intention to Withdraw as Lawyer” form (the “Notice”) with the Court. That Notice included an email address for the applicant.
On 28 February 2025, the applicant’s solicitor filed a “Notice of Withdrawal as Lawyer” form with the Court.
On 3 March 2025, the applicant (now unrepresented) and the Minister were reminded by my chambers of the date and time of the directions hearing. They were also advised that they were required to attend that directions hearing “in person” and provided with instructions about how they could do so. That correspondence was sent to the applicant at the email address included in the Notice. Importantly, that correspondence put the applicant on notice that, should he not appear at the scheduled directions hearing, the applicant’s judicial review application may be dismissed.
As outlined above, when the matter came before this Court on 7 March 2025 there was no appearance by or on behalf of the applicant. The Court had the matter called outside of the court room three times. There was still no appearance by the applicant.
Mr Benjamin Mayne (“Mr Mayne”) from Sparke Helmore appeared at the hearing on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). That correspondence was tendered and referenced as Exhibit 1.
The Court asked Mr Mayne how the Minister wished to proceed.
Mr Mayne advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules. Mr Mayne also sought the Minister’s costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibit 1 and the history of this matter, the Court was satisfied that the applicant had been properly notified of the directions hearing date and time. He was also advised of how he could appear at that hearing and the possible consequences of failing to attend at that directions hearing.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Mayne was prepared to make oral submissions as required by the Court (at both the final hearing listed on 13 February 2025 and the directions hearing listed on 7 March 2025).
CONCLUSION
In the circumstances, the Court made orders to dismiss the application for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 19 March 2025
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