Lee v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 136
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lee v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 136
File number: SYG 97 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 16 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 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: 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: 18 Date of hearing: 16 February 2024 Place: Perth Counsel for the Applicant: No appearance by or on behalf of the applicant Counsel for the Respondents: Ms M Kent Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 97 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YU-CHING LEE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
16 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 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).
3.The applicant pay the first respondent’s costs, fixed in the sum of $4,000.
4.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 16 February 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 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).
3. The applicant pay the first respondent’s costs, fixed in the sum of $4,000.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 Sydney Registry of this Court at 4.57pm on 17 January 2023 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 17 January 2023 (and filed in this Court at 4.57pm on 17 January 2023).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 21 January 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 25 February 2020). It was not filed within that time period. Rather, the application in this matter was filed 1,058 days outside of the requisite time period.
On 2 May 2023, orders were made by Registrar van der Westhuizen 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 16 February 2024.
On 9 February 2024, the parties were reminded 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).
As outlined above, when the matter came before this Court (on 16 February 2024), there was no appearance by or on behalf of the applicant. Ms Megan Kent (“Ms Kent”) appeared (by video link) at the hearing of the extension of time application on behalf of the first respondent (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 my chambers had received correspondence from Ms Kent on 13 February 2024. That email correspondence attached copies of various email communications from Ms Kent to the applicant, including correspondence which put the applicant on notice that, should she not appear at the scheduled hearing, the Minister may seek to have her matter dismissed with costs. That correspondence (including the attachments) was tendered and referenced as Exhibit 2.
The Court further confirmed that it had before it an affidavit of Ms Kent (affirmed and filed on 9 February 2024 (the “Kent affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant. The Kent affidavit was taken as read and in evidence.
The Court asked Ms Kent how the Minister wished to proceed in the circumstances.
Ms Kent 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 $4,000.
Noting the correspondence contained in Exhibits 1 and 2 and the Kent affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. She was also advised of how she 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 Ms Kent 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 applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2024
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