ETR18 v Minister for Citizenship and Multicultural Affairs
[2025] FedCFamC2G 109
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ETR18 V Minister for Citizenship and Multicultural Affairs [2025] FedCFamC2G 109
File number(s): MLG 2765 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 30 January 2025 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa - application for judicial review – application for extension of time – where applicant failed to attend – applications dismissed. Legislation: Migration Act 1958 (Cth) s 477(2)
Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of last submission/s: 30 January 2025 Date of hearing: 30 January 2025 Place: Melbourne Solicitor for the Applicant The applicant did not appear Solicitor for the Respondents Mr J Mangos, Sparke Helmore Lawyers ORDERS
MLG 2765 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ETR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
30 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs;
2.The name of the second respondent is amended to Administrative Review Tribunal;
3.The application for an extension of time filed on 14 September 2018 is 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); and
4.The applicant pay the first respondent’s costs of and incidental to the proceeding fixed in the sum of $4,189.38.
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 CORBETT
These are reasons for judgment delivered ex tempore on 30 January 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
By an application for judicial review filed with this Court on 14 September 2018, the applicant seeks an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act). The applicant seeks to review a decision of the second respondent (Tribunal) which was made on 8 November 2017. In that Decision, the Tribunal confirmed the dismissal of the applicant's application for review for non-appearance at a hearing of the Tribunal on 19 October 2017.
The applicant is a citizen of Malaysia and arrived in Australia on an Electronic Travel Authority visa on 2 November 2016.
On 3 February 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (visa) claiming fear of harm on the basis that he was involved in an illegal motorcycle business.
On 20 March 2017, a delegate of the Minister refused the applicant's application for the visa.
On 6 April 2017, the applicant applied to the Tribunal for review of the delegate's decision.
On 18 September 2017, an invitation was sent by the Tribunal to the applicant to attend a hearing scheduled on 19 October 2017. There was no response to that invitation and two SMS reminders were sent by the Tribunal to the applicant regarding the hearing date (12 October 2017 and 18 October 2017).
On 19 October 2017, there was a hearing before the Tribunal which the applicant did not attend. The Tribunal dismissed the application for review, pursuant to s 426A(1A)(b) of the Act. The applicant was notified of the decision to dismiss his application for review and advised that reinstatement could be applied for on or before 2 November 2017. The applicant did not seek to reinstate the application for review by that deadline.
On 8 November 2017, the Tribunal confirmed the decision to dismiss the application for review and confirmed the delegate's decision to refuse the application for the visa (Decision). It is from that Decision which the applicant now seeks judicial review and an extension of time.
On 14 September 2018, the applicant lodged an application for judicial review and an application for an extension of time with this Court, together with an affidavit in support. The applicant claimed five grounds of review, summarised as follows: the applicant was suffering from financial and language issues which delayed the filing of his application for review to the Tribunal; in relation to his rights for review to this Court, the applicant had difficulties with seeking employment which also affected his ability to access information and fund his application to this Court; and finally, that he sought legal advice however was unable to secure the services of a legal representative.
None of those reasons appear to identify any jurisdictional error on behalf of the Tribunal which would invoke the jurisdiction of this Court. In the circumstances of this case, the application for judicial review was filed approximately 275 days after the date prescribed by the Act to commence a proceeding in this Court. There has been no satisfactory explanation given as to why an extension of time should be given to this applicant.
After filing the application for judicial review and an extension of time, orders were made by a Registrar of this Court setting the matter down for hearing. The first of those orders was made on 30 April 2020, and the second order on 5 December 2023.
On 27 November 2024, the Court sent an email to the last known address for service of the applicant, notifying him that the matter was listed for hearing before this Court on this day and at this time. By a further email from my chambers dated 20 January 2025, the applicant was again informed of the date and time of this hearing and asked to confirm his appearance. There was no response to that email. A copy of the Court Book and the Minister's outline of written submissions was served on the applicant on 10 January 2025. There has been no response to the service of those documents on the applicant.
The time is now 10.40 am. The matter was listed for hearing at 10.00 am this morning, and the applicant has not appeared. I am satisfied that the applicant was notified of the time, place and date of this hearing at the last known address nominated by him as his address for service. I am also satisfied that the applicant's non-attendance has occurred in circumstances where the applicant was aware that an appearance in person was required this morning.
In these circumstances, I am prepared to dismiss the proceeding pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and I will order that the applicant pay the first respondent’s costs of and incidental to the proceedings in the sum of $4,189.38.
I certify that the preceding fifteen (15) numbered paragraph is a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 5 February 2025
0
0
2