FEJ17 v Minister for Immigration and Border Protection

[2024] FedCFamC2G 689

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEJ17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 689

File number(s):	SYG 3675 of 2017
Judgment of:	JUDGE CAMERON
Date of judgment:	28 June 2024
Catchwords:	PRACTICE & PROCEDURE – Application for dismissal – Non-appearance of the applicant.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division:	General
Number of paragraphs:	7
Date of hearing:	28 June 2024
Place:	Sydney
Counsel for the Applicant:	No appearance by or on behalf of the applicant
Solicitor for the First Respondent:	Clayton Utz
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 3675 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FEJ17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	28 JUNE 2024

THE COURT ORDERS THAT:

1.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 application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $4,168.81.

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 CAMERON

INTRODUCTION

1. This matter was commenced on 27 November 2017 and timetabling orders were made on 15 January 2018.  The matter was listed for directions today so that a hearing date could be appointed.  The Court wrote to the parties on 24 June 2024, advising them of today's directions hearing and in doing so, used the email address which appears to have been identified by the applicant in his initiating application and supporting affidavit filed on 27 November 2017.

   LEGISLATION AND RULES

2. Rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provided at all relevant times:

   13.06 Default of appearance of a party

   (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

   …

   (c)       if the absent party is an applicant—dismiss the application;

   …

   APPLICATION FOR DISMISSAL

3. There is some issue in my mind whether the handwritten email address on the initiating application and supporting affidavit contains an underscore or a hyphen between the applicant's names which are used as part of his email address.  I note, firstly, that the email address with the underscore is the one which is used in his application for a protection visa and which was repeated later in the Immigration Assessment Authority's correspondence with him.

4. In the event that there is some mistake in using that email address, I note that in exhibit R1, which is correspondence the Minister's solicitors sent to the applicant, the Minister's solicitors wrote to two email addresses, one using the underscore and another using the hyphen.  Mr Wang, solicitor who appears for the Minister today, has pointed out to me that the email sent to the address using the hyphen bounced back, which I am prepared to accept indicates that the correct email address is the one with the underscore. 

5. The matter was listed for directions at 11.30am this morning. When the matter was called on at about 12.15pm, there was no appearance by or on behalf of the applicant. In the circumstances, the Minister has sought dismissal of the matter, pursuant to r 13.06(1)(c) of the Rules.

6. Exhibits R1 and R2 demonstrate that, on 24 June 2024 and on 26 June 2024, the Minister's solicitors wrote by email to the applicant at the underscore email address, advising him that if he failed to appear at the directions hearing today, the Minister might apply to have the matter dismissed with costs. He has now made that application.

   CONCLUSION

7. In the circumstances, I am satisfied that it is appropriate to make the order sought by the Minister.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       1 August 2024