Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 583
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mudiyanselage v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 583
File number(s): MLG 799 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 19 July 2022 Catchwords: MIGRATION – Student 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
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 19 July 2022 Place: Perth Applicants: No appearance Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 799 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRADEEPIKA PRIYADARSHANI KUMARI RANAWEERA RANAWEERA MUDIYANSELAGE
First Applicant
KAMINDA YAPA BANDARA YAPA MUDIYANSELAGE
Second Applicant
OMESHI KUMARI YAPA YAPA MUDIYANSELAGE
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:
19 JULY 2022
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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The first and second applicants pay the first respondent’s costs fixed in the sum of $7,853.
5.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 before the Court for a final hearing at 12.00pm (AWST) / 2.00pm (AEST) on 19 July 2022. When the matter was called, there was no appearance by or for the applicants.
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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The first and second applicants pay the first respondent’s costs fixed in the sum of $7,853.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 27 March 2018 (the “application”). The application was accompanied by an affidavit which was sworn by Valerie Dagama Pereira and filed on behalf of the applicants on 27 March 2018.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 2 March 2018.
On 19 March 2019, orders were made by Judge Mercuri (as she then was) in the then Federal Circuit Court of Australia programming the matter to a hearing “on a date to be advised”.
On 8 October 2021, the parties appeared at a directions hearing before Judge Lucev in this Court at which time orders were made amending the programming orders and listing the matter for a final hearing on 31 March 2022.
On 20 March 2022, my chambers notified the parties that the matter had been re-listed for a final hearing (by video link) on 19 July 2022 at 12.00pm (AWST) / 2.00pm (AEST).
On 14 July 2022, the parties were reminded by my chambers of the date, time and location of the hearing. The parties were also given instructions on how to attend the hearing via Microsoft Teams.
On 18 July 2022, the Minister filed an affidavit of Adam Cunynghame affirmed on 18 July 2022 (the “Cunynghame affidavit”). That affidavit provided evidence that the first applicant is currently offshore and “does not hold a visa which would permit their re-entry into Australia”.
On 19 July 2022, the matter was called for a hearing. Mr Barrington of counsel appeared for the Minister at that hearing. Unfortunately, there was no appearance by or for the applicants.
Mr Barrington took the Court through the Cunynghame affidavit (which was tendered and read into evidence). It was noted that the first applicant had departed Australia, her visa had since ceased and she had no right of return to Australia. Mr Barrington also advised that the Court had been provided with correspondence from his instructor’s office to the applicant serving various documents and advising the applicants that, in the event that they did not attend the hearing, the Minister would seek to have the matter dismissed with costs.
That correspondence, together with the other correspondence from my chambers outlined above, was tendered and referenced as Exhibit 1.
The Court asked Mr Barrington how the Minister wished to proceed in the circumstances.
Mr Barrington advised that the Minister sought to have the matter 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $7,853.
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicants had been properly notified of the hearing date and time and advised of what they needed to do to participate in that hearing. The applicants were also aware that if they did not appear at the hearing, the Minister would seek dismissal and a costs order.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate. The Minister’s written submissions were detailed. Further, Mr Barrington had been briefed as counsel and 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 [2] above.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 July 2022
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