FDN24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 601
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDN24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 601
File number: PEG 245 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 17 April 2025 Catchwords: MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 17 April 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 245 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDN24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
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 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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5.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 final hearing before the Court at 10.30am on 17 April 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 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 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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
5.Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 this Court is an application for judicial review which was filed in the Perth Registry of the Court on 17 July 2024 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant (on 16 July 2024) and filed with the Court on 17 July 2024.
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 3 July 2024. By that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
On 4 September 2024, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”.
On 30 December 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court on 17 April 2025 at 12.00pm.
On 11 April 2025, the parties were reminded by my chambers of the date of the final hearing. The parties were also advised that the hearing would instead commence at 10.30am (on 17 April 2025). They were also given instructions in relation to an “in person” attendance at the Court’s Perth Registry.
As outlined above, when the matter came before this Court (on 17 April 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 (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Ms Aatika Ismailjee (affirmed and filed on 10 April 2025 (the “Ismailjee affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing (on 17 April 2025), the Minister might seek to have the matter dismissed with costs. The Ismailjee affidavit was taken as read and in evidence.
The Court asked Mr Mayne how the Minister wished to proceed in the circumstances.
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). He also sought the Minister’s costs, fixed in the sum of $6,500.
The Court considered the correspondence contained in Exhibit 1 and the Ismailjee affidavit and was satisfied that the applicant had been properly notified of the hearing date and time. The applicant was also advised of how he could appear at that hearing and the possible cost consequences of failing to attend.
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.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court also 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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 April 2025
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