Mann v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1763
•29 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Mann v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1763
File number(s): MLG 927 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 29 July 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Temporary Work (Skilled) (subclass 457) visa – no appearance by the applicant - dismissal Legislation: Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c), 16.05(2)(c)
Migration Act 1958 (Cth) s 476
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Number of paragraphs: 7 Date of hearing: 29 July 2021 Place: Perth For the Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Ms L. Mills (via Microsoft Teams) Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 927 of 2017 BETWEEN: AMANPREET KAUR MANN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 JULY 2021
THE COURT ORDERS THAT:
1.
The Originating Application be dismissed for non-appearance pursuant to
r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
2.The Applicant pay the First Respondent’s costs in the sum of $6,000 by 29 August 2021.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
THE COURT NOTES THAT:
A.An order made in the absence of the parties may be subject to an application to be set aside under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
On 15 May 2017, the applicant, Ms Amanpreet Kaur Mann (“Ms Mann”), filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in the Melbourne Registry of this Court, in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 7 April 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to cancel Ms Mann’s Subclass 457 (Temporary Work (Skilled)) visa (“Work Visa”). The Court notes that the primary visa holder was Mr Davinder Singh, who sadly passed away on 19 May 2015, and that Ms Mann was a secondary visa holder.
The Court notes there has been a significant delay in this matter coming to hearing, and as the Chief Judge of this Court has observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren that it is “common knowledge that the Melbourne Registry of this Court has a large backlog”. The Court also refers in that regard to GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy, refusing to transfer a matter from the Sydney Registry to the Melbourne Registry of the Court in light of the delays in the Melbourne Registry which would have meant that the application not be heard for two to three years.
As noted above in [1], the matter was filed in the Melbourne Registry in May of 2017, and following a First Court Date some six months thereafter, a Registrar made orders, including an order that there be a final hearing before Judge Hartnett, as her Honour then was, in mid-2019 on a date to be advised by the Court.
In May 2018, the parties were sent an email from the Chambers of Judge Hartnett listing the matter for a final hearing on 3 September 2019. Just over a year later, in May 2019, an email was sent to the parties from the Chambers of Judge Hartnett, adjourning the matter to a date to be fixed. The Court notes that this was likely a consequence of her Honour’s appointment to the Family Court of Australia. There was then no further exchange of correspondence until 16 June 2021, when a notice of relisting (“Notice of Relisting”) was sent to Ms Mann from the Chambers of the National Migration Law Judge, Judge Kendall, listing the matter for final hearing today before the Court as presently constituted sitting in the Perth Registry with a video link to the Melbourne Registry.
Subsequent to the Notice of Relisting, on 20 April 2021, an email sent was from the Chambers of the hearing Judge, indicating to Ms Mann that the hearing date was today, that it would be conducted via Microsoft Teams, and giving the appropriate information in relation to the relevant links to facilitate a Microsoft Teams hearing. The email also indicated that in the event that Ms Mann was not able to use the Microsoft Teams link, that there could be a hearing by telephone. In the circumstances, the Court is satisfied, there having been effectively two notices of listing for today’s hearing sent to Ms Mann within the last six weeks, that Ms Mann was appropriately on notice of today’s hearing.
At hearing today, the Minster’s representative seeks, in the absence of an appearance by Ms Mann, to have the proceedings dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and in the circumstances which have been just outlined and notwithstanding that there has been a long delay between the matter originally being listed for hearing and today and for the reasons the Court has outlined, including the fact that there have been two sets of communication indicating the hearing was on today, the Court is satisfied that it is appropriate to make an order dismissing the application for non-appearance pursuant to r 13.03C(1)(c) of the FCC Rules.
The Court notes in so doing that, pursuant to r 16.05(2)(c) of the FCC Rules, that there is facility for Ms Mann to make an application to reinstate the proceedings by way of setting aside the order for dismissal for non-appearance.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 July 2021
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