Li v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 634
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Li v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 634
File number(s): SYG 2335 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 2 May 2025 Catchwords: MIGRATION – Dismissal for non-appearance – where parties were notified of the matter being relisted for a different time on the same date – where applicants emailed the Court on the morning of the hearing stating they could not attend - application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06 Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 30 April 2025 Place: Parramatta Counsel for the Applicants: No appearance Solicitor for the Second Respondent: Submitting appearance, save as to costs Solicitor for the First Respondent: Mr Wilson, Australian Government Solicitor ORDERS
SYG 2335 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHIA-MIN LI
First Applicant
CHUN-YU HSIEH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
30 APRIL 2025
THE COURT ORDERS THAT:
1.The application filed on 8 October 2020 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).
2.The Applicants pay the First Respondent’s costs fixed in the sum of $ 4,189.38
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE SKAROS:
These are the written reasons for judgement delivered ex tempore on 30 April 2025, amended in minor respects and only to correct typographical errors and to reflect the intention of the Court, as follows.
Before me today is an application filed with this Court on 8 October 2020 seeking an extension of time to lodge a review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 31 August 2020 affirming the Department's decision to cancel the applicants’ student visas.
In the application to the Court, the applicants provided details of their email for service, being a Gmail address.
On 28 January 2025, the first applicant appeared at a call over before a Registrar of the Court on behalf of the applicants. Orders were made by the Registrar indicating that the matter would be listed for an extension of time hearing, and if accepted, a final hearing on a date to be advised. The orders also provided for the applicants to file written submissions and any additional evidence by 2 April 2025. A copy of those orders were sent to the parties by email on 28 January 2025.
The applicants have not filed anything further since those orders, in fact they have not filed anything since first lodging their application in October 2020.
On 20 February 2025, an email was sent to the parties advising that the matter was listed for an extension of time and final hearing (in person) before me at the Parramatta Registry on Wednesday 30 April 2025 at 10:15am.
On Monday 28 April 2025 at 9:33am, at my direction, my associate emailed the parties informing them that the hearing had been moved to 1:00pm on Wednesday 20 April 2025 and that the parties had to advise by return email by 4:00pm on that day, being Monday 28 April 2025, if that was unsuitable. Neither party advised it was unsuitable by that time.
On the morning of the hearing, on Wednesday 30 April 2025, the first applicant emailed my associate twice at 7:43am and 7:45am. In those emails, the first applicant stated:
We cannot attend the hearing today because of short notice.
We need more time to confirm the new hearing date in May.
And
I am sorry, the new time is not suitable for me.
At 9:30am today, at my direction, my associate emailed the parties, in reply to the first applicant’s earlier emails noting that:
·The parties were required to advise the Court by 4:00pm on Monday if the re-listing was unsuitable and noting that no such correspondence had been received;
·The matter remained listed for hearing today - Wednesday 30 April 2025 at 1:00pm at the Parramatta Registry in person before me; and
·In the circumstances, leave was granted to enable the applicants to appear by Audio Visual Link (Webex), details of which were provided in the email.
When the matter came before this Court today at 1:00pm there was no appearance by or on behalf of the applicants. The matter was called outside the court room three times but there was still no appearance.
There was also no appearance by or on behalf of the applicants by audio visual link using Webex.
My associates have also attempted to telephone the applicants on the telephone number provided as the number for service in the application filed on 8 October 2020. The attempts to contact them have been unsuccessful.
Mr Wilson appeared at the hearing on behalf of the first respondent (the Minister). He advised 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 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 and sought the Minister’s costs, fixed in the sum of $4,189.38.
I have considered the evidence relied on by the Minister in support of their application for dismissal for non-appearance, including the following:
(a)An email sent to the applicants by the Court on 20 February 2025 and 28 April 2025 regarding the listing (and the relisting) of the hearing respectively, notifying them of the date, time and location of the hearing; and
(b)An email sent to the applicants by the solicitors for the Minister on 28 April 2025 at 4:42 pm notifying the applicants of the relisted hearing and informing them that if they failed to appear the Minister would seek an order for dismissal with costs.
I am satisfied on the evidence before me that the applicants have been properly notified of the hearing date, time and location. I also note that leave was also granted to enable the applicants to appear via Audio Visual Link. I note that the applicants were notified by email on 20 February 2025 (over two months ago) that the hearing would be listed today. I acknowledge that the relisting of the matter caused a delay of the staring time of the hearing by two hours and 45 minutes. Notwithstanding, the applicants have not provided any explanation as to why this time was not suitable for them and why they could not attend the delayed hearing today. For these reasons I am satisfied that the matter should be dismissed.
In relation to the costs order sought on behalf of the Minister for the amount of $4,189.38, I am satisfied that costs should follow the event, and that the amount sought is reasonable.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Skaros. Associate:
Dated: 2 May 2025
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