FDM19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 526

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FDM19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 526  

File number(s):	SYG 3396 of 2019
Judgment of:	JUDGE MARQUARD
Date of judgment:	15 April 2025
Catchwords:	MIGRATION - Judicial review of decision affirming decision not to grant a Protection (Class XA) (subclass 866) visa – dismissal for non-appearance.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Division:	General
Number of paragraphs:	8
Date of hearing:	15 April 2025
Place:	Sydney
The Applicant:	No appearance by, or on behalf of, the applicant
Solicitor for the First Respondent:	Ms G Gutmann, Minter Ellison
Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 3396 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FDM19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MARQUARD
DATE OF ORDER:	15 APRIL 2025

THE COURT ORDERS THAT:

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

2.The application filed on 19 December 2019 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).

3.The applicant pay the first respondent's costs of and incidental to the application fixed in the amount of $4,189.39.

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)

INTRODUCTION

1. By an application filed with this Court on 19 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 24 October 2017. The decision of the AAT affirmed a decision of a delegate of the first respondent which refused to grant the applicant a Protection (Class XA) (subclass 866) protection visa. 

   BACKGROUND

2. The background to the application, including aspects of the relevant procedural background to this matter, are set out in paragraphs [3] to [9] of the Minister's written submissions dated 21 August 2024.

3. I note the following key events. On 6 February 2020, a Registrar of this Court issued timetabling orders in this matter standing this matter over for a callover and notifying the parties of a hearing date to be advised at a future date.  On 31 July 2024, at the callover of the matter, the applicant and the representative of the first respondent appeared by telephone. The applicant was assisted by a Mandarin interpreter. The Registrar made further timetabling orders, including that the applicant file and serve on or before 14 August 2024 any amended application with proper particulars, written submissions and additional evidence.  No amended application, written submissions or evidence were filed by the applicant.

4. The applicant's address for service in this matter is specified in the originating application filed with this Court on 19 December 2019.  Correspondence dated 1 April 2025 (Exhibit R-1) has been provided by the first respondent demonstrating that the applicant was advised of the extension of time hearing on 15 April 2025 and that the correspondence was sent to the last notified email address for service.

5. In the correspondence dated 1 April 2025 from the solicitors for the first respondent, a copy of the sealed orders of the Court was also provided to the applicant. The correspondence included details of the hearing listed for 10.15 am on 15 April 2025. A copy of the correspondence from the Court was enclosed, and the applicant was advised that if he did not appear at the hearing on 15 April 2025, the Minister may apply to have the matter dismissed under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) with costs.

   HEARING & DETERMINATION

6. I am satisfied that the applicant was made aware of the time, date and location of the hearing by way of a variety of correspondence, including emails sent from the Court to the parties dated 25 March 2025 and 9 April 2025 and the emails sent by the solicitors for the first respondent to the applicant. There was no appearance by the applicant at the hearing.  The associate called the matter three times outside the Court. At 10.31 am the applicant was still not present in Court.  I am satisfied that the applicant was notified of the hearing date at the address being his nominated email address for service and that he has for whatever reason chosen not to attend. I am further satisfied that the non-attendance has occurred in circumstances where the applicant was put on notice by the first respondent as to the consequences of that failure.

7. In all of the above-mentioned circumstances, I am prepared to dismiss the proceedings pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), consequent upon the non-appearance of the applicant.

8. The Minister seeks an order that the applicant pay costs fixed in the amount of $4,189.39.  I am satisfied that costs should follow the event, considering the non-appearance, and that the amount sought is reasonable as it is a scaled amount.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.

Associate:

Dated:       17 April 2025