Ekt17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 316
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 316
File number(s): SYG 3054 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 20 April 2022 Catchwords: MIGRATION – non-appearance of applicant at hearing for judicial review – applicant properly informed of hearing – 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 20 April 2022 Place: Sydney The Applicant: No appearance Solicitor for the Respondents: Mr M Burnham of Sparke Helmore ORDERS
SYG 3054 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 APRIL 2022
THE COURT ORDERS THAT
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 3 October 2017 is 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).
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,000.
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 GIVEN:
On 3 October 2017, the applicant filed an application to show cause with the Court seeking a review of the decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister not to grant him a protection visa. At the time the applicant commenced the proceedings, the applicant gave his email address as being a particular gmail address.
On 30 November 2017, orders were made by a Registrar of this Court for the preparation of the matter for hearing, including orders that the applicant have leave to file an amended application on or by 15 February 2018. No such document was filed.
On 25 February 2022, this matter was brought into my docket and listed for hearing at 10.15am today. That listing information was sent to the parties and, in particular, was sent to the applicant at the gmail address which he gave in connection with these proceedings. On 19 April 2022, the parties were sent a link by email from my Chambers for today’s hearing, which is being held using the Microsoft Teams platform online.
At 10.20am this morning, the applicant was not present in the online hearing forum. An interpreter in the Uzbek language has been present in the online forum since the commencement of the hearing and will remain so until it concludes. In the event that the applicant attends during the course of the delivery of these reasons, we will deal with that eventuality.
Upon ascending the Bench and in the absence of the applicant, I had the matter called outside the courtroom out of an abundance of caution in the event that, notwithstanding the fact that the proceeding had been listed online, the applicant may have instead attended the Court in person. There was no appearance in person either.
The solicitor for the first respondent makes an application that the proceedings be dismissed for want of appearance. In support of that application, the first respondent’s solicitor read the Affidavit of Thomas Michael Guihot (Guihot Affidavit), affirmed on 14 April 2022. That Affidavit indicates that on 18 March 2022 the first respondent’s solicitor sent an email to the applicant at his gmail address, which included by way of service a sealed copy of the first respondent’s Notice of Address for Service, which had been filed on 15 March 2022.
Further, on 12 April 2022, the solicitors for the first respondent served on the applicant a copy of the written submissions and list of authorities, which had been filed for the first respondent on 12 April 2022. That email was sent to the applicant’s gmail address and also by express post, together with a letter to the address for service (by reference to the applicant’s Notice of Change of Address for Service which had been filed with the Court on 22 October 2019).
On 13 April 2022, the applicant sent an email to the solicitors for the first respondent requesting that a hard copy of the first respondent’s documents be sent to a new postal address, which he provided in the email sent to the solicitors for the first respondent. In that email, I note that the applicant specifically said: “I will attend the final hearing next week on 20th April.” The applicant went on to say that he had still not received the mode of appearance and queried whether or not he should attend in person or by video link.
In that regard, as noted earlier, details for the online hearing forum were sent to the parties. I further understand that the applicant accepted at 8.22am today the hearing invitation that was in the email from my Associate. Notwithstanding the statement of the applicant in the email, which forms annexure “TMG-8” to the Guihot Affidavit and the fact that the applicant did accept the Microsoft Teams link, there is still no appearance by or for him today.
I note, lastly, that the final annexure to the Guihot Affidavit, being annexure “TMG-9”, is a letter from the solicitors for the first respondent to the applicant dated 13 April 2022, which I understand was sent to him by post to his new address. As part of that letter, the applicant was again informed of the time and date of the hearing and the letter made clear to him that his attendance was essential today and that if he did not attend the hearing, the first respondent would seek orders from the Court that the matter be dismissed with costs.
I am satisfied that the applicant was notified of today’s hearing event in a number of ways, including by the Court’s listing orders in February 2022, by the email sent by my Associate with the Microsoft Teams link, and by the most recent letter from the first respondent’s solicitor to the applicant dated 13 April 2022, which forms annexure “TMG-9” to the Guihot Affidavit. Accordingly, I am satisfied that the applicant has been made aware of today’s hearing in a number of ways and has, for whatever reason, chosen not to attend, notwithstanding the fact that the consequences of his failing to do so were foreshadowed to him by the first respondent’s solicitors.
I note that it is now 10.29am. The applicant has still not appeared in the online hearing forum or physically attended the Court. For the foregoing reasons, I am prepared to dismiss the matter on the basis of the applicant’s non-appearance today and I will so order.
The solicitor for the first respondent seeks an order that the applicant pay the Minister’s costs fixed in the sum of $5,000.
I am of the view that in all of the circumstances of this case, that is an appropriate amount, having regard to the work undertaken and also to the Court’s scale. I will so order.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 May 2022
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