FWO18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 576
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FWO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 576
File number(s): ADG 461 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 30 June 2023 Catchwords: MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka
PRACTICE AND PROCEDURE – Where no appearance by applicant at directions hearing – where directions hearing adjourned – where no appearance by applicant at further directions hearing – where calls to applicant unanswered – where no email address provided – where hard copy correspondence returned to sender – dismissed for non-appearance
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05 Division: Division 2 General Federal Law Number of paragraphs: 7 Date of last submission/s: 30 June 2023 Date of hearing: 30 June 2023 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Mr A Chan by CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 461 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FWO18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
30 JUNE 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.
2.The originating application filed 12 November 2018 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).
3.The applicant pay the first respondent’s costs in the sum of $3,000 by 30 July 2023.
AND THE COURT NOTES THAT:
A.The Court notes that an application dismissed in the absence of a party may be the subject of an application to set it aside the dismissal order pursuant to r 17.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
This is an application for judicial review (“Judicial Review Application”) by the applicant, FWO18, filed in the Adelaide Registry of this Court on 12 November 2018. FWO18, in his Judicial Review Application, seeks to review a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) and in the grounds of his Judicial Review Application he simply alleges a denial of natural fairness by the Authority to address part of his claim and a failure to take into account a relevant consideration without any relevant particularisation.
The response filed on behalf of the first respondent (“Minister”) asserts that the Judicial Review Application does not establish jurisdictional error in the Authority Decision, made on 31 October 2018. The matter was, by way of procedural history, the subject of a directions hearing on 24 May 2023 when FWO18 did not appear and the matter was adjourned to today. The Court notes that the relevant notice of address for service details of FWO18 do not contain an email address for service but, rather, a physical address for service or a street address.
FWO18, as the Court observed, did not appear on 24 May 2023 when the matter was called on for a directions hearing and, on that occasion, the Court made orders for the matter to be adjourned to today with a note that if the applicant did not appear at the directions hearing today, the judicial review application may be dismissed 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) (“GFL Rules”).
The Court notes that FWO18 has not joined today’s directions hearing by video link and that endeavours to call him on a mobile telephone number, which does appear on the Electronic Court File, have been unsuccessful, those calls simply not being answered.
The Court further observes that the correspondence enclosing the relevant notices of listing for the directions hearing on 24 May 2023 and also for today's directions hearing, which was sent to the physical address for service listed in the current notice of address for service details, have returned to the sender (the Court) by the postal authorities. In those circumstances, it is apparent that FWO18 has been notified of the hearings by way of correspondence sent to the address for service that he has nominated, that he would no longer appear to be at that address for service and that those notices have been returned to the Court. The only other contact details which the Court has for FWO18 is a mobile phone number which, as the Court has already indicated, is not responding to calls made to it.
In all the circumstances, the Court considers that all necessary steps and appropriate steps have been taken to endeavour to inform FWO18 of both the last directions hearing on 24 May 2023 and today’s directions hearing, but those steps have been unavailing and FWO18 has not appeared. In the circumstances, it is appropriate that the originating application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules and it is also appropriate that there be an order for costs in the Minister’s favour in the sum of $3,000, as is sought by the Minister. There will also be a name change order for the Minister.
There will be a note to the order to the following effect, that the Court notes that an application dismissed in the absence of a party may be the subject of an application to set it aside pursuant to r 17.05(2) of the GFL Rules.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex Tempore Reasons for Judgment of Judge Lucev. Associate:
Dated: 3 July 2023
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