ENJ20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1316
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENJ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1316
File number(s): SYG 2394 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 3 December 2024 Catchwords: MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – no appearance by applicant – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) s 426A(1A)(b), s 426A(1B), s 426A(1E), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), r 13.13(a), r 17.05, r 21.02
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 26 November 2024 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Ms A Wilford of Sparke Helmore ORDERS
SYG 2394 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENJ20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application 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).
2.The applicant pay the first respondent’s costs fixed in the sum of $1,500.
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 ZIPSER
INTRODUCTION
On 12 November 2024, the applicant lodged, pursuant to rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a registrar of this Court dated 6 November 2024 (Registrar Decision). The registrar summarily dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 June 2024.
The Review Application was listed for hearing in the Court on 26 November 2024. The applicant did not appear at the hearing. In the circumstances explained below, the Court has dismissed the Review Application pursuant to rule 13.06(1)(c) of the Rules.
FACTUAL BACKGROUND
The applicant, a citizen of China, first arrived in Australia in March 2015 as the holder of a subclass 600 Business Visitor visa.
On or about 7 November 2016, the applicant lodged an application for a subclass 866 Protection visa.
On 22 February 2017, a delegate of the first respondent refused to grant the applicant the visa.
On 22 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 20 August 2020, the Tribunal invited the applicant to attend a hearing scheduled on 4 September 2020. The applicant failed to attend the scheduled hearing.
On 4 September 2020, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) (Non-Appearance Decision).
On 21 September 2020, the Tribunal confirmed the Non-Appearance Decision pursuant to s 426A(1E) of the Act (Confirmation Decision).
PROCEEDINGS IN THIS COURT
Judicial review application
On 20 October 2020, the applicant lodged an application with the Court under s 476 of the Act seeking judicial review of the Confirmation Decision (Originating Application). The grounds of the Originating Application were (as written):
There exist jurisdictional errors in my case.
1.Tribunal member failed to provide strong reasons to support his decision.
2.Tribunal member did not consider whether I will face risks if I return to China. So Tribunal member did not apply relevant laws to my case.
3.Tribunal member did not execute power properly to fully consider my case and make fair decision.
On 3 September 2024, the first respondent filed an amended response which sought, among other orders, an order that the Originating Application be summarily dismissed.
On 4 September 2024, the matter was listed for directions. The applicant appeared by telephone, assisted by a Mandarin interpreter. The Court listed the matter for a summary dismissal hearing on 6 November 2024. The Court ordered that the applicant file and serve at least 14 days before the hearing any written submission and further evidence in respect of the hearing. The applicant did not take up this opportunity.
Summary dismissal hearing
On 6 November 2024, there was a summary dismissal hearing before a registrar. The applicant appeared at the hearing by video link, assisted by a Mandarin interpreter. Prior to the hearing, the applicant had not filed:
(a)a submission to explain why he believed there was a jurisdictional error in the Non-Appearance Decision or Confirmation Decision; or
(b)a document which explained why he did not appear at the hearing before the Tribunal on 4 September 2020 or why he did not apply to the Tribunal to reinstate his application within 14 days after receiving notice of the Non-Appearance Decision – see s 426A(1B) of the Act.
Following the hearing on 6 November 2024, and on the same day, the registrar made the Registrar Decision in which he ordered that the Originating Application be summarily dismissed pursuant to rule 13.13(a) of the Rules.
Registrar review application
On 12 November 2024, the applicant lodged the Review Application. The orders sought by the applicant in the Review Application were (as written):
1. The order made by Registrar Lindsay on 6 Nov 2024 of summarized dismissing my review application should be set aside.
2. The applicant’s case should be remitted to the Tribunal for reconsideration.
3. The decision made by the Tribunal on 21 Sep 2020 should be quashed.
4. The costs paid to the first respondent should be waived.
On 19 November 2024, the Court made orders including:
1.The application for review lodged by the applicant on 12 November 2024 is listed for hearing at 10:15 am on Tuesday 26 November 2024 before Judge Zipser.
2.The applicant is to file and serve any submission or evidence in support of the application for review by 4:00 pm on Friday 22 November 2024.
On the same day, the Court emailed the orders to the parties and provided details of the hearing date and place in the covering email.
The applicant did not file any submission or evidence in support of the Review Application before the hearing on 26 November 2024.
On the morning of 25 November 2024, the Court sent a reminder email to the parties concerning the hearing date and place.
Hearing on 26 November 2024
At 9:58 am on 26 November 2024, 17 minutes before the scheduled commencement of the hearing at 10:15 am, the applicant sent an email to the Court (Applicant’s 26 November Email) which stated:
I am sick today and could not attend the court in person. Could you please arrange another time for me?
The email did not attach a medical certificate or other evidence in support of the applicant’s assertion that he was sick. The timing of the email raises a question as to whether the applicant sent the email to frustrate the running of the hearing.
The Applicant’s 26 November Email replied to the chain of emails from the Court on 19 and 25 November 2024 referred to above. Accordingly, I am satisfied the applicant was aware of the hearing date and place on 26 November 2024.
At 10:15 am on 26 November 2024, my associate replied to the Applicant’s 26 November Email. The reply stated in part:
Your request has been brought to the attention of Judge Zipser.
The hearing will proceed this morning. His Honour has permitted you to appear at the hearing this morning remotely via Webex, using the link provided below: …
A “meeting link” was then contained in the email (Meeting Link).
By 10:27 am the applicant had not sought to join the hearing through the Meeting Link. At 10:27 am my associate tried to phone the applicant on his mobile phone number. The applicant did not answer the call. At 10:30 am the hearing commenced. Annabelle Wilford from Sparke Helmore appeared for the first respondent. There was no appearance by or for the applicant. At 10:32 am my associate again tried to phone the applicant on his mobile phone number. Again, the applicant did not answer the call.
Ms Wilford requested that the Review Application be dismissed under rule 13.06(1)(c) of the Rules. For reasons explained above, I am satisfied the applicant was aware of the hearing on 26 November 2024. I considered it appropriate in the circumstances to make the order sought by Ms Wilford and indicated that I would make the order sought.
Ms Wilford also sought an order that the applicant pay the first respondent’s costs in the amount of $1,500. Ms Wilford stated that the first respondent’s solicitor/client costs were about $2,300. The amount sought by the first respondent is reasonable. I indicated that I would make this costs order.
At 10:42 am the hearing concluded. By this time, the applicant had not sought to join the hearing through the Meeting Link.
At 11:05 am, about 20 minutes after the hearing concluded, my chambers received an email from the applicant which stated:
Dear Officials,
I did as requested. plz see the attached. Should I wait until I am called?
Please advise ASAP.
thank you very much
Copied and pasted and into the email was a screenshot of the Court’s Webex lobby for the hearing on 26 November 2024. The screenshot appeared to be taken on the applicant’s mobile phone and displayed a timestamp of 10:58 am in the top left corner. The screenshot indicated the applicant received the Meeting Link, although may not have attempted to join the hearing through the Meeting Link until close to 10:58 am.
At 1:36 pm my chambers replied to the applicant, copied to Ms Wilford. The reply stated (anonymisation added):
Dear ENJ20
I refer to your emails sent at 11:05 am and 11:09 am which have been brought to the attention of Judge Zipser.
The hearing of your application commenced shortly before 10:30 am and concluded at 10:42 am. You did not appear at the hearing in person or remotely via Webex. The Court attempted to phone you twice at 10:27 am and 10:32 am. You did not answer your phone.
On application of the solicitor for the first respondent, Judge Zipser indicated that the Court would make an order under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 dismissing your application. An order and reasons for judgment will be emailed to the parties in the coming days.
If the applicant is genuinely aggrieved that, because of a sudden illness which prevented him from attending the hearing on 26 November 2024, the Review Application was dismissed in his absence, pursuant to rule 17.05 of the Rules, he may apply to the Court to set aside the order. However, if the applicant decides to file an application under rule 17.05, he should file an accompanying affidavit which provides evidence concerning the illness he claims to have had on the morning of 26 November 2024, including the nature of the illness, the date the illness commenced, the symptoms he experienced on the morning of 26 November 2024, and the manner in which the illness or symptoms prevented him from attending the hearing. He should also explain in the affidavit:
(a)why he waited until 9:58 am on 26 November 2024 before he sent the Applicant’s 26 November Email, and why he did not send the email earlier in the morning or the previous day;
(b)why he did not answer either of the two phone calls from my associate to him at 10:27 am and 10:32 am referred to above; and
(c)why he did not attempt to join the hearing through the Meeting Link before 10:42 am.
If the applicant decides to file an application under rule 17.05:
(a)He should also file an accompanying written submission which seeks to persuade the Court why there is a jurisdictional error in or relating to the Non-Appearance Decision or the Confirmation Decision. If the Court is not persuaded that there is a jurisdictional error in the Non-Appearance Decision or the Confirmation Decision, then there may be no utility for the applicant in filing an application under rule 17.05.
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 3 December 2024
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