Lai v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 311
•8 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 311
File number: PEG 208 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 8 April 2024 Catchwords: PRACTICE AND PROCEDURE – application for dismissal 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) –application dismissed 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: 17 Date of hearing: 8 April 2024 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 208 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NGOC YEN NHI LAI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 APRIL 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is 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) (GFL Rules).
3.The applicant is to pay the first respondent’s costs fixed in the amount of $4,189.38.
THE COURT NOTES THAT:
A.In circumstances where the application has been dismissed in the absence of the applicant, the applicant may apply to set aside the orders above under r 17.05(2)(a) of the GFL Rules.
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 LADHAMS:
This matter comes before the Court today for the final hearing of an application for judicial review of a decision made by the Administrative Appeals Tribunal, filed on 12 September 2023. The applicant has not appeared at the hearing today and the Minister seeks an order that 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) (GFL Rules).
The parties were advised that the matter had been listed for final hearing on 8 April 2024 by way of an email sent from my Chambers on 17 January 2024. That email was sent to the applicant at the email address set out in her application, and I am satisfied that she was properly advised of the hearing date.
I also note that on 2 April 2024 the Minister filed an affidavit of service, affirmed by Abhilasha Tyagi. That affidavit annexes correspondence sent to the applicant by the Minister’s lawyer on 19 January 2024, which confirmed that the hearing was listed before the Court on 8 April 2024 at 10:00am, and put the applicant on notice that if she does not appear, the Minister may seek to have the matter dismissed for non-appearance under r 13.06(1)(c) of the GFL Rules, with costs.
Ms Tyagi’s affidavit also annexes email correspondence sent by the Minister’s lawyer to the applicant on 25 March 2024, which again confirmed that the matter was listed for hearing on 8 April 2024 at 10:00am, and again put the applicant on notice that if she does not appear at the hearing, the Minister may apply to have the matter dismissed for non-appearance under r 13.06(1)(c) of the GFL Rules.
The applicant sent an email to Chambers on Friday 5 April 2024 at 3:21pm seeking an adjournment of the hearing on the basis that she is unwell. The email attached a medical certificate from Bedford Family Practice dated 5 April 2024 that indicated the doctor had examined the applicant on that day, and then expressed the view:
Based on the available history and on my examination findings
In my opinion, this patient is unfit for work from
05/04/2024 to 08/04/2024 inclusive.
My associates replied to that email later in the afternoon on 5 April 2024 advising that I had reviewed the medical certificate provided by the applicant and did not agree to vacate the hearing on the basis of the medical certificate provided. The email indicated that the medical certificate did not contain any information about the nature of any illness of the applicant, or whether it prevents her from participating in a short hearing of up to two hours duration and, if so, why. The applicant was also put on notice in that email that if she wished to seek an adjournment on the basis of more detailed medical evidence, it would be appropriate to first contact the Minister’s lawyer to see whether the Minister consents to adjourn the hearing, in which case signed consent orders could be provided to Chambers. The applicant was also put on notice that if the Minister did not consent to an adjournment and she still sought an adjournment, any request for an adjournment could be made by way of an application in a proceeding supported by an affidavit.
The email contained the following note to the applicant:
Applicant please note, the matter remains listed for hearing on 8 April 2024 at 10.00am AWST. Even if you make an application for an adjournment, you should proceed on the basis that the hearing remains listed at that time unless the Court tells you otherwise. If you fail to appear at the hearing, your application may be dismissed for non-appearance pursuant to s 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
The applicant sent a further email to my Chambers on Saturday 6 April 2024. In that email she said:
I have been representing myself in this application as I do not have enough funds to afford a lawyer. However, this is taking a toll on my mental health as it is causing me significant stress. I do not have the mindset or sufficient knowledge to represent myself effectively at the hearing. Therefore, I seek your understanding as I plan to seek professional assistance in the upcoming days.
It will be noted that this email does not provide more detailed medical evidence and appears to also seek an adjournment on the basis that the applicant wishes to seek legal assistance. My associates responded to that email on Monday 8 April 24 at 8:39am, and reiterated the content of the previous correspondence, noting that no consent orders had been received and that no application in a proceeding supported by an affidavit had been filed. The email confirmed that the matter remained listed at 10:00am that day. The applicant sent a further email to the Court at 9:01am on 8 April, saying:
Thank you for your email, I will be submitting an application in a proceeding with support documents shortly. I apologise I will not be at the hearing today.
In response, at 9:20am on 8 April 2024, my associates wrote to the parties and again provided a note to the applicant:
Applicant please note, as indicated in the email sent on 5 April 2024, even if you make an application for an adjournment, you should proceed on the basis that the hearing remains listed at that time unless the Court tells you otherwise. If you fail to appear at the hearing, your application may be dismissed for non-appearance pursuant to s 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
At the time the matter was called for hearing, to the best of the Court’s knowledge, the applicant had not attempted to file any application in a proceeding and there was no indication that anything was pending for filing on the Court’s record.
I have considered the various email correspondence and the medical certificate provided in deciding whether or not to dismiss this application for non-appearance. The medical evidence before the Court would not be sufficient to support the adjournment of the hearing on medical grounds, if such an application was before the Court. The medical certificate provided by the applicant on 5 April 2024 contains no information about the nature of the applicant’s illness, whether any illness would prevent her from attending and participating in the hearing on 8 April 2024 and the reasons why that would be the case. While the applicant refers to the toll of this proceeding and the stress she is under, in her email of 6 April 2024, there is no medical evidence to support that and no medical evidence to indicate that any stress she is experiencing prevents her from appearing at the hearing on 8 April 2024.
To the extent that the applicant’s email sent on 6 April 2024 refers to her desire to engage a legal practitioner to assist her, the Court observes that the applicant has had ample opportunity prior to the hearing to engage a lawyer should she wish to do so, and in any event, there is no right to legal representation in migration proceedings. Neither the medical evidence provided nor the applicant’s desire to seek assistance from a lawyer provide an adequate explanation for the applicant’s non-appearance at the hearing on 8 April 2024.
Taking into account the evidence referred to, I am satisfied that the applicant was properly notified of the hearing on 8 April 2024 and was aware of that hearing. I am further satisfied that the applicant was on notice of the potential consequences of her failure to appear at the hearing, being that her judicial review application may be dismissed for non-appearance, and I am satisfied that the applicant has failed to appear at the hearing on 8 April 2024 without reasonable explanation. In these circumstances, I consider that it is appropriate to dismiss the applicant’s judicial review application for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules.
The Minister seeks an order that the applicant pay the Minister’s costs in the amount of $4,189.38, and I am satisfied that this is appropriate.
Finally, I observe that the applicant may apply for the Court to set aside the orders made in her absence, pursuant to rule 17.05(2)(a) of the GFL Rules. The effect of an order setting aside the orders made today would be that the applicant’s judicial review application would be reinstated.
I therefore make the following orders:
(1)The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
(2)The application is 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 is to pay the first respondent’s costs fixed in the amount of $4,189.38.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 April 2024
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