Lama v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 282
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 282
File number: MLG 2430 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 23 February 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicants – 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: 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)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 23 February 2024 Place: Perth Applicants: No appearance by or on behalf of the applicants Counsel for the First Respondent: Mr J McDonald Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2430 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARITA LAMA
First Applicant
PRAKRIT SHRESTHA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 FEBRUARY 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 applicants pay the first respondent’s costs, fixed in the sum of $4,189.38.
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 a hearing of the application for an extension of time (via video link) at 2.00pm (AEDT) / 11.00am (AWST) on 23 February 2024. When the matter was called, there was no appearance by or on behalf of the applicants.
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 applicants pay the first respondent’s costs, fixed in the sum of $4,189.38.
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 29 July 2019 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 29 July 2019 (and filed in this Court on 29 July 2019).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 7 February 2019. 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 14 March 2019). It was not filed within that time period. Rather, the application in this matter was filed 137 days outside of the requisite time period.
On 1 June 2023, orders were made by Registrar Downing of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 21 December 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time (by video link) at 2.00pm (AEDT) / 11.00am (AWST) on 23 February 2024. The listing notice was sent to the applicants using the email address included in their application (filed in this Court on 29 July 2019).
On 22 December 2023, my chambers received a “delivery failure notification” email which stated that the Court’s email “message could not be delivered” to the applicants.
On 2 January 2024, my chambers sent a letter to the applicants at the postal address included in their application. That letter included the details from the listing notice (as sent by email on 21 December 2023) and instructions in relation to how the applicants could attend the hearing by video link (using Microsoft Teams).
That same day (also on 2 January 2024), my chambers wrote to Mr Jared Mintz (“Mr Mintz”) at Clayton Utz (solicitors for the first respondent (the “Minister”)) to advise that the Court had been unable to contact the applicants using the email address included in their application and enquiring as to whether the Minister had “any alternate email address or any updated contact details for the applicants” that the Court could use to try to reach them. That correspondence was copied to the applicants (using the email address included in their application). That email correspondence was also unable to be delivered to the applicants.
On 10 January 2024, Mr Mintz contacted my chambers by email and advised that the “most recent email address provided to the Department” of Home Affairs by the applicants was the email address included in their application to this Court.
On 20 February 2024, the parties were reminded (by email) of the date, time and location of the hearing. They were also provided instructions in relation to how they could attend that hearing by video link (using Microsoft Teams). A letter was also sent to the applicants (at the postal address included in their application) with that information.
As outlined above, when the matter came before this Court (on 23 February 2024), there was no appearance by or on behalf of the applicants. Mr Joseph McDonald (“Mr McDonald”) appeared (by video link) at the hearing of the extension of time application on behalf of the Minister.
The Court confirmed that it had before it correspondence from my chambers to the parties (sent by post and by email, 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 Ms Sophia Griffiths-Mark (affirmed on 16 February 2024 and filed at 5.05pm on 16 February 2024 (the “Griffiths-Mark affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicants and put them on notice that, should they not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. The Griffiths-Mark affidavit was taken as read and in evidence.
The Court asked Mr McDonald how the Minister wished to proceed in the circumstances.
Mr McDonald advised the Court that the Minister sought to have the matter dismissed on the basis of the applicants’ non-appearance pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Griffiths-Mark affidavit, the Court was satisfied that the applicants had been properly notified of the hearing date and time. They were also advised of how they could appear at that hearing (via video link using Microsoft Teams).
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 Mr McDonald was prepared to make oral submissions, as required, in relation to the application for an 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 applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 March 2024
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