Liu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 668
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 668
File number: SYG 624 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 23 July 2024 Catchwords: MIGRATION – Medical Treatment 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: 20 Date of hearing: 23 July 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms S Sangha Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 624 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JIN LIU
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 JULY 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 $6,100.
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 for a final hearing before the Court (by video link) at 3.00pm (AEST) / 1.00pm (AWST) on 23 July 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 $6,100.
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 which was filed in the Sydney Registry of this Court on 18 April 2023 (the “application”).
That application was accompanied by an affidavit which was deposed by the applicant on 16 April 2023 (and filed in this Court on 18 April 2023).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 4 April 2023. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Medical Treatment (Class UB) (Subclass 602) visa.
On 10 January 2024, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised.”
On 14 May 2024, my chambers sent a listing notice to the parties (by email) advising them that the matter had been listed for a final hearing (by video link) at 3.00pm (AEST) / 1.00pm (AWST) on 23 July 2024.
On 22 July 2024, the parties were reminded (by email) of the hearing date and time. 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 23 July 2024), there was no appearance by or on behalf of the applicant. Ms Sharon Sangha (“Ms Sangha”) appeared on behalf of the Minister (by video link) and a Mandarin interpreter had been made available to assist the applicant (also by video link).
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 it had before it an affidavit of service of Mr Thomas John Pattinson (affirmed and filed on 16 July 2024 (the “Pattinson affidavit”)). The material annexed to that affidavit confirmed service of various documents (filed on behalf of the Minister in this matter) on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court further confirmed that my chambers had received correspondence from Mills Oakley (solicitors for the Minister) attaching email correspondence from their office to the applicant dated 22 July 2024. That email correspondence provided the applicant with further copies of materials filed on behalf of the Minister in this matter and reminded the applicant that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs. That correspondence was tendered and referenced as Exhibit 2.
The Court asked Ms Sangha how the Minister wished to proceed in the circumstances.
Ms Sangha 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 $6,100.
Noting the correspondence contained in Exhibits 1 and 2 and the materials annexed to the Pattinson affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (by video link) and the possible costs consequences of non-appearance.
In relation to the costs order sought by the Minister, the Court determined that the amount requested was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Sangha was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister, as outlined at [3] 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 twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 July 2024
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