FZG18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 974
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FZG18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 974
File number(s): MLG 3482 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 18 September 2024 Catchwords: MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application 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) Legislation: Migration Act 1958 (Cth), ss 425, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of last submission/s: 18 September 2024 Date of hearing: 18 September 2024 Place: Melbourne The Applicant: No appearance Counsel for the First Respondent: Ms S. Moxey Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3482 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FZG18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 19 November 2018 by the applicant is dismissed pursuant to r 13.06(1)(c) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
3.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings fixed in the sum of $3,000.00.
AND THE COURT NOTES THAT:
A.The applicant was called outside the courtroom at 10.19am today and there was no response to the call.
B.Pursuant to r 17.05 of the Rules, the Court may vary or set aside a judgment or order made in the absence of a party.
C.Written reasons for judgment to 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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE CUTHBERTSON
INTRODUCTION
This matter was listed for a hearing of an interlocutory application seeking an extension of time before the Court at 10.00am on 18 September 2024. When the matter commenced, there was no appearance by or on behalf of the applicant. The first respondent’s representative sought dismissal of the application for non-appearance.
In the circumstances, the Court made the following orders:
1. The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2. The application filed on 19 November 2018 by the applicant is dismissed pursuant to r 13.06(1)(c) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
3. The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings, fixed in the sum of $3,000.00.
These reasons explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules.
BACKGROUND
On 19 November 2018, the applicant filed an application in this Court pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the second respondent (he Tribunal) made on 26 February 2018 (JR application). By that decision the Tribunal confirmed the dismissal of an application for review that had previously been made by the Tribunal when the applicant did not attend a hearing in response to an invitation issued pursuant to s 425 of the Act. The JR application was filed out of time. The applicant also applied for an extension of time in which to file the JR application (EOT application). The Minister opposed the EOT application.
The applicant is a citizen of Malaysia. The underlying decision the subject of the JR application was a decision refusing the applicant’s application for a protection visa.
In terms of the procedural history of this matter, I note that the JR and EOT applications and affidavit in support were filed on 19 November 2018 by the applicant, several months in excess of the 35 day time limit provided by s 477 of the Act. Both of those documents set out an address for service which included an email address. That email address, I also note for the sake of completeness, was one that was consistently used by the applicant in his dealings with the then-named Department of Immigration and Border Protection and the Tribunal.
On 26 March 2024, the applicant was sent a notice from this Court that the EOT application was to be listed for a callover before a Judicial Registrar on 9 April 2024 at 2.15 pm. That notice was sent to the applicant’s email address for service. On 9 April 2024, the applicant appeared at the callover for directions by telephone with the assistance of a Malay interpreter. Directions were made on that occasion with the purpose of readying the matter for the hearing of the extension of time application.
I note that the orders made by the Registrar on 9 April 2024, included notations where the applicant confirmed receiving a physical copy of the court book and, more importantly in the context of this decision, put the parties on notice that the matter may be listed as early as May 2024 for the hearing of the EOT application.
On 11 April 2024 the applicant filed with this Court a Notice of Address for Service. It appears that document was for the purpose of changing his residential address, but it also retained as an address for service the previously nominated email address.
The orders made by the Registrar on 9 April 2024 included orders giving the applicant the opportunity to file and serve on or before 23 April 2024 written submissions, any amended application with proper particulars of the grounds of the application, and any additional evidence on which he sought to rely. I note that no documents have been filed by the applicant in accordance with 9 April 2024 orders.
The Minister, however, did file submissions in relation to the matter on 26 April 2024. I am satisfied from the material contained in the Affidavit affirmed by Amron Rath on 30 April 2024 that those submissions were served on the applicant the same day they were filed via his nominated email address for service. The letter accompanying the submissions emailed to the applicant on 26 April 2024 included the following advice:
This matter is listed for hearing on a date to be advised by the Court at the Federal Circuit and Family Court of Australia, Owen Dixon Commonwealth Law Courts Building, 305 William Street, MELBOURNE, VIC 3000. You are required to attend court on this occasion.
If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Minister's legal costs of the proceedings.
The applicant was also invited to contact the Minister's solicitors if he had any queries.
On 13 August 2024, the applicant and the solicitors for the Minister were emailed a Notice of Listing from the Court. That Notice of Listing set out that this matter was listed for an extension of time hearing before me on Wednesday 18 September 2024, at 10am (AEST). The mode of the hearing was in person, and the place was the Commonwealth Law Courts Building, 305 William Street, Melbourne, Vic, 3001. That Notice of Listing was sent to the applicant at his nominated email address.
The present time is now 10:32am, and the applicant is still not present in the Court. The applicant was called outside of the court room three times. I am satisfied the applicant was notified of today's hearing date by the court via his email address, which is 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 has been put on notice by the Minister’s representatives of the consequences of not appearing, namely, they would be seeking an application for dismissal of the proceedings and the costs associated with those proceedings.
CONCLUSION
In all of the above circumstances I dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules, consequent upon the non-appearance of the applicant.
I am also minded to award costs in the sum of $3,000.00 as requested by the Minister. I note that sum falls well short of the scale of costs for such matters. I am also satisfied that the applicant was notified of the costs consequence of failing to appear at the hearing as listed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 18 September 2024
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