Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 330

FEDERAL COURT OF AUSTRALIA

Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 330  

Appeal from:	Application for Judicial Review: Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1994 (29 June 2021)
File number:	NSD 739 of 2021
Judgment of:	MARKOVIC J
Date of judgment:	31 March 2022
Date of publication of reasons:	4 April 2022
Legislation:	Federal Court of Australia Act 1976 (Cth) s 20(5)(d)(ii)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	9
Date of hearing:	31 March 2022
Counsel for the Applicant:	No appearance by or on behalf of the Applicant
Solicitor for the Respondents:	Minster Ellison Lawyers

ORDERS

NSD 739 of 2021

BETWEEN:

KWOK KAM LAW

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	MARKOVIC J
DATE OF ORDER:	31 MARCH 2022

THE COURT ORDERS THAT:

1.Pursuant to s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth) the proceeding be dismissed.

2.The applicant pay the first respondent’s costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1. On 23 July 2021 Kwok Lam Law commenced this proceeding by the filing of an originating application for review of a migration decision.  The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is the first respondent and the Administrative Appeals Tribunal is the second respondent. Mr Law seeks a review of a decision of the Tribunal made on 29 June 2021 not to revoke the cancellation of his Partner (Residents) (Class BS) (Subclass 801) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

2. At the time of the filing of the originating application, Mr Law was in immigration detention.  However, on 3 August 2021 he departed Australia on a flight to Hong Kong.  Based on the evidence before me, it is clear that Mr Law is no longer in Australia, and was removed on that date. 

3. Notwithstanding that, the proceeding was set down for hearing for half a day on 31 March 2022 commencing at 10.15 am (AEDT).  On 24 November 2021 at the time when the proceeding was set down for hearing, orders were also made for the parties, among other things, to file and serve their written submissions (24 November Orders).  Relevantly, the order setting the proceeding down for hearing also stated that the commencement time of the proceeding may be subject to change in the event that Mr Law continued to be self-represented and situated in Hong Kong.  I note that Mr Law made no application for change of commencement of the hearing time. 

4. By email dated 24 March 2022, the solicitors for the Minister served the Minister’s outline of submissions and list of authorities on Mr Law.  They noted in their letter of the same date enclosed in their email that the proceeding was listed for hearing before the Court today at 10.15 am.  The letter also included a caution that if Mr Law did not appear on that occasion, the Minister may apply to have the matter dismissed for non-appearance under the relevant provisions of the Federal Court Rules 2011 (Cth) with costs.

5. On 30 March 2022, my Associate circulated to the parties, including Mr Law, a Microsoft Teams link available for any person who wished to attend the hearing remotely. 

6. Mr Law has not filed any submissions pursuant to the 24 November 2022 Orders.  Nor has he, as I understand it, in the intervening period contacted the solicitors for the Minister or the Court. 

7. This morning, when the matter was called on for hearing, there was no appearance by Mr Law or on his behalf, either in person or via the available Microsoft Teams link.  The matter was also called three times outside the courtroom, and there was no appearance either by or on behalf of Mr Law. 

8. That being so, the Minister has made an application pursuant to s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) for the proceeding to be dismissed.  I propose to accede to that application and to make the order.  Based on the evidence before me Mr Law was notified of the hearing date and was given an opportunity to appear remotely in the event that he could not appear in person, and/or had not instructed a solicitor to appear on his behalf.  As I have already observed, there has been no appearance either by Mr Law or on his behalf.

9. I will make an order dismissing the proceeding pursuant to s 20(5)(d)(ii) of the Federal Court Act, given Mr Law’s failure to attend the hearing. The Minister also seeks an order that Mr Law pay his costs as agreed or taxed. In the circumstances, I will also make an order to that effect.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

Associate:

Dated:       4 April 2022