Mahachi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 638
•17 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mahachi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 638
File number(s): SYG 2380 of 2019 Judgment of: JUDGE LAING Date of judgment: 17 July 2024 Catchwords: MIGRATION – non-appearance by the applicant following an informal adjournment application made the morning of the hearing – application dismissed for non-appearance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c) Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 17 July 2024 Place: Sydney Applicant: No appearance Solicitor for the First Respondent: Ms P Nirmaleswaran, Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2380 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETROS MAHACHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1.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).
2.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.
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 LAING:
Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa.
The matter was listed for hearing before me this morning. Notification of this was sent to the parties by email on 22 May 2024. The email was sent to the applicant’s email address for service noted on the application to this Court. The Minister also relies upon correspondence by which reminders of the hearing were sent to the applicant.
Prior to the hearing this morning, the applicant sent an email to my Associate stating the following:
Hi sir / madam
I’m very sorry for the short notice. I chose to go back to Zimbabwe for now as everything is not going well with me.i lost my mother sometime ago and I didn’t go at the time.and that is not well with me.
May you cancel the hearing for tomorrow. Thank u
Petris Mahachi
(As per the original)
The Associate responded:
Dear Parties,
The below communication has been received from the applicant. The hearing will remain listed unless an adjournment is granted.
The applicant may appear remotely by telephone or audio-visual link using the below details if required:
[link]
Would the Minister please advise his position in relation to the adjournment request?
Sincerely,
[Signature]
The Minister responded:
Dear Associate
CC Applicant
SYG2380/2019
PETROS MAHACHI v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR
Request for adjournment opposed
Thank you for your email. The first respondent opposes the applicant’s request for an adjournment on the following bases:
(a)This application has been on foot since 2019;
(b)The applicant has been on notice of the hearing since May 2024;
(c)The adjournment request has been made less than 12 hours before the listed hearing; and
(d)The first respondent does not consider that the substantive application for judicial review has merit and the grounds of review fail to establish any arguable error;
In these circumstances, we consider the matter should properly proceed without delay.
We further confirm that we will appear in person at the scheduled hearing and if the applicant does not attend by way of MS Teams or telephone, may seek for the application to be dismissed with costs.
A copy of our recent correspondence to and from the applicant is also attached for her Honour’s consideration.
Sincerely
[Signature]
The applicant has not appeared this morning. The Minister seeks dismissal 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) (Rules).
The applicant has my sincere sympathy regarding the loss that he has communicated to the Court. However, ultimately, I am not convinced that I possess sufficient material to support the grant of an adjournment in the present case.
Adjournments are not to be granted lightly. This Court has a considerable backlog of cases. Many parties in those cases have been waiting some years for determination of their matters. In this regard, I note that the current matter commenced in 2019.
The consequences of this for litigants will vary. Although some may welcome additional time, others may suffer serious personal consequences from delay. This is particularly so in cases where applicants are residing away from their families until their legal situation has been resolved. Delay also comes at a public cost, by reference to the Court’s resources and those of the Department.
For these reasons, a matter ought not to be adjourned without sufficient cause. Although the applicant has made reference to the passing of his mother, it is not clear when this occurred. It is not apparent why the request for adjournment was not communicated before the morning of the hearing. It has not been demonstrated that the applicant is unable to attend the hearing today, noting that he has been given the opportunity to do so remotely. The applicant has provided no supporting material in relation to his adjournment application.
In these circumstances, I accept that the course proposed by the Minister is an appropriate one. I will therefore order that the application be dismissed pursuant to r 13.06(1)(c) of the Rules.
The Minister also seeks an order that his name be amended to "Minister for Immigration, Citizenship and Multicultural Affairs" to reflect a change in name more generally. I will so order.
Lastly, the Minister seeks an order that the applicant pay his costs of these proceedings fixed in the amount of $5,000. I accept that this is a reasonable amount, having regard to the fact that it is significantly below the Court’s scale, and also to the work that has been performed in this matter.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 26 July 2024
0
0
1