Hoong v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 296
•4 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoong v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 296
File number: MLG 2478 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 4 April 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for an extension of time hearing – no appearance by or on behalf of the applicant – application 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 (Cth). Legislation: Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 4 April 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2478 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HOO YEW HOONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KEDALL
DATE OF ORDER:
4 APRIL 2024
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application 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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $3,800.
5.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).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This matter was listed before this Court for an extension of time hearing (via video link) at 1.00pm (AEDT) / 10.00am (AWST) on 4 April 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application 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).
4. The applicant pay the first respondent’s costs, fixed in the sum of $3,800.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter 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) (the “Rules”).
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 13 July 2020 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 10 July 2020 (and filed in this Court on 13 July 2020).
The application sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 5 June 2020. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 10 July 2020). It was not filed within that time period. Rather, the application in this matter was filed 3 days outside of the requisite time period.
Whilst the applicant did not seek an extension of time in his application, the Court was prepared to allow the applicant to orally amend his application at the hearing of this matter. The first respondent (the “Minister”) did not oppose the applicant being granted leave to amend his application to seek an extension of time and this was clearly outlined in the Minister’s written submissions (filed in this Court on 20 March 2024).
On 30 November 2020, orders were made by Registrar Carlton of the then Federal Circuit Court of Australia, programming the matter to “an extension of time hearing” on a date to be advised.
On 29 December 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for an extension of time hearing (by video link) at 2.00pm (AEDT) / 11.00am (AWST) on 3 April 2024.
On 2 April 2024, the parties were reminded (by email) of the date of the hearing. The parties were informed of a change to the hearing start time (from 2.00pm (AEDT) / 11.00am (AWST) to 3.30pm (AEDT) / 12.30pm (AWST). They were also provided instructions in relation to how they could attend the hearing by video link (using Microsoft Teams).
On 3 April 2024, the parties were advised that the hearing had been re-listed and would take place the following day (on 4 April 2024) at 1.00pm (AEDT) / 10.00am (AWST). The parties were told that the hearing arrangements remained the same and that the parties should appear via video link (using the Microsoft Teams details previously provided).
As outlined above, when the matter came before this Court (on 4 April 2024), there was no appearance by or on behalf of the applicant. Ms Centaine Mumford (“Ms Mumford”) appeared (by video link) at the extension of time hearing on behalf of the Minister.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Ms Mumford (affirmed and filed on 26 March 2024 (the “Mumford affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. The affidavit also indicated that the applicant had “departed Australia on 12 December 2023 and ha[d] not returned to Australia” since that time. The Mumford affidavit was taken as read and in evidence.
The Court asked Ms Mumford how the Minister wished to proceed in the circumstances.
Ms Mumford advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $3,800.
Noting the correspondence contained in Exhibit 1 and the Mumford affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (via video link using Microsoft Teams) and the possible costs consequences of non-appearance.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Mumford was prepared to make oral submissions, as required, in relation to the required extension of time.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kedall. Associate:
Dated: 4 April 2024
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