Harit v Minister for Immigration and Border Protection

[2022] FedCFamC2G 1016

Federal Circuit and Family Court of Australia

(DIVISION 2)

Harit v Minister for Immigration and Border Protection [2022] FedCFamC2G 1016   

File number(s):	SYG 3212 of 2017
Judgment of:	JUDGE CAMERON
Date of judgment:	23 November 2022
Catchwords:	PRACTICE & PROCEDURE – application for summary dismissal for non-appearance.
Legislation	Migration Act 1958 (Cth)
Division:	General
Number of paragraphs:	8
Date of hearing:	23 November 2022
Place:	Sydney
For the Applicant:	No appearance by or on behalf of the applicant
Solicitor for the First Respondent:	Ms M. Tidy (Sparke Helmore Lawyers)

Table of Corrections
7 December 2022	The end certification date “23 November 2022” has been corrected to “5 December 2022”.

ORDERS

SYG 3212 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HARIT

Applicant

AND:

MINISTER FOR IMMIGRATOIN AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE CAMERON
DATE OF ORDER:	23 November 2022

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, the application be dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $5,000.

3.The name of the first respondent in the Court record be amended to 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).

REASONS FOR JUDGMENT

Judge Cameron

Introduction

1. This is an application seeking judicial review of the decision of the Administrative Appeals Tribunal (“Tribunal”) made on 14 September 2017 to affirm the decision of the delegate of the first respondent (“Minister”) to not grant the applicant, Mr Harit, a Partner (Temporary) (Class UK) visa.  This proceeding was commenced by an application filed on 17 October 2017. 

2. The parties were advised that the matter is listed for hearing today at 2.15pm and there has been no appearance by or for the applicant.  In the circumstances, the Minister has sought dismissal of the matter. 

   LEGISLATION & RULES

3. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) provide relevantly as follows:

   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;

   …

   Consideration

4. The parties were advised by email on 11 October 2022 that the matter would be listed for callover today at 2.15pm.  That email was in error and a further email and letter were sent on 17 October 2022 advising the matter was, in fact, listed for trial.  The Court’s letters were posted to the applicant at the address identified as his address of service in his initiating application and affidavit of support.  They were also sent to him by email at the email address appearing on the application and the affidavit.  It should be recorded that the applicant’s email address is handwritten on those documents and not as clear as it might be.  However, it is apparent from consideration of the documents included in the Court Book filed by the Minister that the email address he used to communicate with the Tribunal is the same as the one that he identified in his Court documents, which clarifies issues in relation to the legibility of what appears in the Court documents. 

5. When the matter was called on at 2.15pm today, there was, as I said, no appearance by or for the applicant.  In the circumstances, the matter was adjourned until 2.45pm.  During the adjournment at my request the solicitor for the Minister, Ms Tidy, made inquiries of her office to determine whether the applicant had made any contact there. It appears that he has not and he has not written by email to Ms Tidy to explain his absence today.  Ms Tidy advised me that she attempted to speak to the applicant by telephone by calling his mobile number but received a message that the number had been disconnected. 

6. During the adjournment, my Associate called the matter on the ground floor of 80 William Street where we are presently sitting, as well as on Levels 9 and 13 where the Court also sits.  My Associate also made inquiries with the Registry in Queens Square and was advised that the applicant was not present there.  In all the circumstances, I am satisfied that the applicant was placed on notice of today’s hearing and for whatever reason has not attended. 

   Conclusion

7. In the circumstances, I consider it appropriate to grant the Minister’s request that the matter be dismissed pursuant to r.13.06(1)(c) of the Rules. 

   COSTS

8. As the application is to be dismissed, the Minister has sought an order for his costs. There is nothing in the conduct of this proceeding which suggests that costs should not follow the event as they would in the ordinary course.  The Minister seeks the amount of $5,000 for his costs, which is less than the amount which would be available to him in accordance with the scale found in the Court’s Rules. In all the circumstances I am satisfied that that is a reasonable amount to award the Minister. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       5 December 2022