Loh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 407
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Loh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 407
File number: PEG 197 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 17 May 2023 Catchwords: MIGRATION – Temporary Skill Shortage visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicants – 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 Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
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: 18 Date of hearing: 17 May 2023 Place: Perth Applicants: No appearance by or for the applicants Counsel for the First Respondent: Mr B Kaplan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 197 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YONG MENG LOH
First Applicant
SWEE WAH GAN
Second Applicant
SING NIN LOH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS THAT:
1.Counsel for the first respondent 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.There be no order as to costs.
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 at 11.00am on 17 May 2023. When the matter was called, there was no appearance by or for the applicants.
In the circumstances, the Court made the following orders:
1.Counsel for the first respondent 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. There be no order as to costs.
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 Perth Registry of this Court on 18 October 2022 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 17 October 2022 (and filed in this Court on 18 October 2022).
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 14 September 2022. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicants Temporary Skill Shortage (Class GK) (Subclass 482) visas (the “visas”).
On 19 December 2022, orders were made by Registrar van der Westhuizen of this Court programming the matter to a final hearing “on a date to be advised”.
On 20 January 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing before this Court at 11.00am on 22 March 2023.
On 8 March 2023, my chambers notified the parties that the hearing of the matter listed on 22 March 2023 had been vacated and the matter had been re-listed before the Court at 11.00am on 17 May 2023.
On 14 May 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for both an “in person” attendance (for the applicants) at the Court and an “electronic” attendance (for the Minister’s counsel).
When the matter came before the Court at 11.00am (on 17 May 2023), there was no appearance by or for the applicants. Mr Bora Kaplan (“Mr Kaplan”) of counsel appeared at the hearing (via video link) on behalf of the Minister. The matter was called three times but, as outlined above, the applicants did not appear in the court room. They also did not appear via video link.
Mr Kaplan sought to rely on the affidavit of service of Ms Madisen Anne Scott affirmed and filed in this Court on 15 May 2023 (the “Scott affidavit”). The material annexed to the affidavit confirmed service of various documents on the applicants and put the applicants on notice that, should they not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Scott affidavit was taken as read and in evidence.
Mr Kaplan also took the Court through additional email correspondence from his instructing solicitor (annexing the listing and re-listing correspondence as outlined above). That correspondence was tendered and referenced as Exhibit 1.
The Court asked Mr Kaplan how the Minister wished to proceed.
Mr Kaplan advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules.
Noting the correspondence contained in the Scott affidavit and Exhibit 1, the Court was satisfied that the applicants had been properly notified of the re-listed hearing date and time. They were also properly advised of how they could appear at that re-listed hearing.
In relation to costs, the Court notes that Mr Kaplan asked that, in the circumstances of this case, there be no order as to costs The Court agreed that that request was reasonable and there was, accordingly, no order as to costs.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance, with no order as to costs, as outlined at [2] above.
The Court notes that the applicants can apply to have their 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: 18 May 2023
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