Li v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1125
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Li v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1125
File number(s): ADG 234 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 31 October 2024 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 15 August 2024 Date of hearing: 31 October 2024 Place: Adelaide Applicant: No appearance for or on behalf of the applicants Counsel for the First Respondent: Claudia Calabrese Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Applicant: Submitting appearance, save as to costs ORDERS
ADG 234 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAO LI
First Applicant
ZHIFENG CHEN
Second Applicant
YAQIAN LI
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
2.The application for judicial review filed on 7 July 2020 be dismissed 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.
3.The first and second applicants pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the sum of $5,400.
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 GERRARD:
INTRODUCTION
This matter was listed for a final hearing before the Court at 10.00am on 31 October 2024. When the matter commenced, there was no appearance by or on behalf of the applicants either in person or by telephone.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
2.The application for judicial review filed on 7 July 2020 be dismissed 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.
3.The first and second applicants pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the sum of $5,400.
These reasons 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 Adelaide Registry of this Court on 7 August 2020 (the application). That application was accompanied by an affidavit which was deposed by the first applicant (the applicant) on that same day.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 3 June 2020. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the Minister) refusing to grant the applicants Regional Employer Nomination (Class RN) (Subclass 187) visas.
The matter was listed for a directions hearing before Judge Lucev on 3 April 2024. On 2 April 2024, the applicant sought an adjournment of the hearing via email, on the basis of a medical condition. On that same day, his Honour refused the request and put the applicant on notice that should he fail to appear, his matter may be dismissed for non-appearance and costs ordered against him. The applicant then failed to appear at this directions hearing. Following the hearing, Judge Lucev made orders programming the matter to a final hearing before his Honour on 19 September 2024. The applicant was put on notice via those orders that if he did not appear at the final hearing, the originating application or any amended originating application may be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Rules.
On 28 August 2024, the parties were sent a listing notice via email advising them that the hearing before Judge Lucev on 19 September 2024 had been vacated, and the matter had been re-listed before me on 31 October 2024. The parties were advised that the hearing would require “in person” attendance at the Court.
On 28 October 2024, the applicant advised the Court via email that due to his suffering of heart disease, he felt uncomfortable attending the hearing and requested an extension of his hearing date stating that he would attend the hearing when his health recovered in the future. In support of his request, he provided six attachments, including correspondence from Dr Seng Ang dated 24 October 2024 advising that the applicant suffers from a medical condition which was likely heart related and that the applicant would need “further investigation organised by his heart specialist and will be unfit for the court hearing on 31/10/2024”. The applicant also provided confirmation of a scheduled operation on 14 December 2021, evidence of an x-ray in April 2024, a prescription and evidence of review appointments on 28 October 2024 and 8 November 2024.
On 29 October 2024, the Court advised the applicant that should he wish to seek an adjournment, he would be required to make a formal application to the Court at his hearing. He was advised that his matter remained listed for hearing on 31 October 2024, and was reminded that should he fail to appear, his matter may be dismissed for non-appearance and costs ordered against him.
On that same day, the Minister provided their position, foreshadowing that they would not consent to any request for an adjournment, on the basis that the applicant’s medical certificate does not adequately explain why his medical condition would prevent him from attending Court and participating in a Court hearing. However, they advised that they would consent to a request from him to appear at the final hearing by telephone or video-link. The applicant did not respond to either the correspondence from the Court or the Minister and did not make a formal application for an adjournment of the hearing or request to appear by telephone or video-link.
When the matter came before the Court, the applicant did not appear in person. Ms Calabrese appeared in person on behalf of the Minister. My associate made an unsuccessful attempt to contact the applicant via the telephone number in the footer of their application for judicial review. The matter was then called three times outside the courtroom but, as outlined above, the applicant did not appear.
In those circumstances, counsel for the Minister applied to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Counsel also sought the Minister’s costs, fixed in the sum of $5,400.
In support of that application, Ms Calabrese sought to rely on formal correspondence from the Court notifying the parties of the date of the hearing as well as email correspondence from the Minister to the applicant dated 3 October 2024. In this correspondence, the Minister put the applicant on notice of the 31 October 2024 hearing date and that, should he not appear at this scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs.
This email correspondence was tendered, forwarded to my associate via email and placed on the Court file.
Noting the correspondence from the Court and the Minister’s lawyers, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also properly advised that he could make a request to appear at that hearing remotely and the possible costs consequences of non-appearance.
In light of the enquiries made, the Court was satisfied that the applicant did not appear at the final hearing of this matter.
In respect of the costs order sought on behalf of the Minister, the Court was satisfied that the amount sought was appropriate in the circumstances, noting that it is below the scale amount for a proceeding concluded at a final hearing as set out in Schedule 2, Part 2, Division 1 of the Rules. The Minister effectively was required to prepare for a final hearing. The Minister had filed a Court Book and written submissions, and Ms Calabrese was prepared to make oral submissions.
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 his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 31 October 2024
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