FLK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 803
Federal Circuit and Family Court of Australia
(DIVISION 2)
FLK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 803
File number: MLG 2724 of 2017 Judgment of: JUDGE FORBES Date of judgment: 29 September 2022 Catchwords: MIGRATION – Application dismissed due to non‑attendance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rule 13.06
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 29 September 2022 Place: Melbourne Applicant: No appearance Solicitor for the First Respondent: Ms Butler Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 2724 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
29 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 13 December 2017 be 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.
2.The Applicant pay the First Respondent’s costs fixed at $3930.
3.The name of the First Respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
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
JUDGE FORBES
This matter involves an application under section 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Immigration Assessment Authority (“the IAA”) made on 7 November 2017 which affirmed a decision of the delegate of the Minister to refuse to grant the applicant a Temporary Protection (subclass 785) visa (“the visa”) On 29 May 2016, the applicant was refused the protection visa by a delegate of the Minister. The applicant appealed to the IAA and sought review of the delegate’s decision.
On 7 November 2017, the IAA confirmed the delegate’s decision. On 7 November, in a communication to the applicant’s then migration agent, the IAA attached a copy of its decision of that day and a fact sheet which informed the applicant of his right to seek a review of the decision in this Court. I note, although it is not necessary for me to do so because of the orders I have made, that the fact sheet that was sent to the applicant with the decision informed him through his agent that the application for review must be made within 35 days of the date of the decision or if an extension of time was sought, the applicant would have to ask for it in his application and explain the reasons why.
The correspondence I refer to, that is the correspondence communicating the decision to the applicant, is annexed to an affidavit filed by the applicant in these proceedings on 13 December 2017. On 13 December 2017, the applicant made an application for judicial review of the IAA’s decision. On that day, the applicant also filed an affidavit deposing that he had approached a law firm, Sabelburg Morcos Lawyers on 4 December 2017, and that they would assist him to make his application for judicial review.
In the application for review made on 13 December 2017, the applicant identified two grounds of alleged jurisdictional error, namely:
(1)The IAA incorrectly applied s.5(1) in regards to the complementary protection criteria assessment, thus constituting jurisdictional error.
(2)The IAA failed to take into consideration relevant matters in relation to the complementary protection criteria assessment particularly in relation to s.5(1) in regards, thus constituting jurisdictional error.
On 22 March 2018 the Minister filed a response seeking that any application for an extension of time be dismissed and that the applicant pay the first respondent’s costs of the proceedings. Again, I note, although it is not strictly necessary for me to do so having regard to the orders that I have made today that it would appear that the application for judicial review was made beyond the 35 day time limit provided for by the Act.
Orders were made earlier this year by a Registrar of the Court to enable the matter to be prepared for trial. The Minister was directed to file a court book and written submissions and the applicant was invited to file any amended application, any supplementary court book and any written submissions.
The matter was initially set down for an in-person hearing before me on 4 May 2022, and that notice was communicated to the applicant’s representative at the time, which was the law firm that I referred to by name earlier. The Minister wrote to my chambers on 20 April 2022 and informed the Court that the applicant’s solicitor had been unable to reach the applicant to obtain instructions and that a notice of intention to withdraw as lawyer dated 13 April 2022 had been filed.
In light of that development, the Minister contended that it would not be in a position to file written submissions in accordance with the directions made earlier and proposed that the hearing of the matter be adjourned to allow the applicant an opportunity to obtain new legal representation should he wish to do so. The Court acceded to that request and adjourned the matter to today, 29 September 2022, with the hearing to commence at 10.15am. The applicant’s solicitors at the time were copied into that correspondence.
On 5 May 2022, the applicant’s solicitors filed their formal notice of withdrawal as lawyer in accordance with the Rules of the Court. That notice of withdrawal as lawyer identified the applicant’s email contact which I need not identify, a mobile number and an address for service. The notice of withdrawal as lawyer also confirmed that that notice, that is the solicitor’s notice of withdrawal, had been served on the applicant at that email address.
The matter was called on before me shortly before 10.25am this morning and there was no appearance by the applicant by that time. I asked my associate to call the matter in the Court precincts and I was subsequently informed that there was no appearance by the applicant.
The Minister is represented by Ms Butler today. Ms Butler seeks an order that the application be 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 (“the Rules”). In seeking that order, the Minister relies upon an affidavit of Laura Rose Butler affirmed on 15 September 2022. In that affidavit, Ms Butler deposes to a number of items of correspondence and emails which have been sent to the applicant’s email and residential address which were derived from the notice of withdrawal filed by his former solicitors. That correspondence started with a letter sent on 14 April 2022 which raised formal matters with the applicant regarding the competence of his application and inviting him to file an amended application to deal with the ‘out-of-time’ issue. I will not for present purposes develop the content of that correspondence.
Ms Butler also deposes that there was correspondence on 11 July 2022, again sent by email to the relevant email address of the applicant informing him of the date of today’s hearing enclosing earlier correspondence identifying the extension of time issue, encouraging the applicant to obtain legal representation and informing him of the requirement to attend today’s hearing. The applicant was also cautioned that, in the event of non-attendance, the Minister may make an application for dismissal of the application without further notice and seek costs. I refer there to the correspondence referred to as annexure LRB4 to the affidavit of Ms Butler.
Ms Butler also informs the Court today, and deposes in her affidavit, that on 8 September 2022 a further letter was sent to the applicant by email and by express post enclosing earlier correspondence and serving upon the applicant an amended response which had been filed by the Minster on 7 September 2022, once again the applicant was informed that the Minister may seek summary dismissal of this application, albeit on a different basis to the application made today. However, in relation to appearance, that correspondence did inform the applicant of today’s hearing date and place and, again, cautioned him that if he did not appear, the Minister may make an application for dismissal of his application and costs.
Produced at the hearing today by the Minister and marked as Exhibit R1 are the tracking results of the registered mail which sent the 8 September 2022 letter to the applicant confirming that the hard copy of that document had been delivered in the sense of being ‘left in a safe place’ at the address identified in the notice of withdrawal filed by the solicitors earlier this year. I am also informed by Ms Butler that a letter was sent on 15 September 2022 to the applicant. A copy of that letter has been marked as Exhibit R2 and was produced to the Court today.
It is self-evident in that correspondence that the applicant has again been informed of the hearing today to commence at 10.15am and again the applicant is cautioned that if he does not appear at the hearing on the scheduled date, the Minister may seek orders that the application be dismissed with costs without further notice. Ms Butler has also tendered the tracking results from Australia Post which confirm that the letter of 15 September 2022 was also delivered to the applicant’s address.
Having regard to all of those matters, I am satisfied that the applicant is on notice of this hearing, has been properly informed of the date and time of the hearing, has been properly put on notice that non-appearance by him risks an application being made by the Minister for the application to be dismissed and that costs may be sought. I referred earlier to the fact that there was no appearance by the applicant, that he has been called in Court and there does not appear to be any other effort by the applicant that I am aware of to communicate with the Court his intention to engage with this proceeding.
For the reasons set out above I dismiss the application pursuant to Rule 13.06(1)(c) of the Rules. The applicant should pay the Minister’s costs fixed at $3930.
I certify that the preceding fourteen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 29 September 2022
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