Odumosu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 710
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Odumosu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 710
File number: PEG 199 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 8 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for 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: 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 2.05(4), 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 8 August 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 199 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUKUNMI DAMILOLA ODUMOSU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
8 AUGUST 2023
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 applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.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 directions hearing at 12.30pm on 8 August 2023. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
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 applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 on behalf of the applicant in the Perth Registry of this Court on 19 October 2022 (the “application”). That application was accompanied by an affidavit which was deposed by Prof. Dr Gerhard Janssen (“Dr Janssen”) on 19 October 2022 (and filed with the Court on that same day).
The application seeks review of a decision made by the Administrative Appeals Tribunal on 14 September 2022. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 19 October 2022).
Unfortunately, the application in this matter was not filed until 5.03pm on 19 October 2022. As outlined in r 2.05(4) of the Rules, any document received for filing after 4.30pm is taken to have been received on the next day the Registry is open for business (in this case, on 20 October 2023). The application filed on behalf of the applicant was thus filed one day outside of the requisite timeframe.
On 19 December 2022, orders were made by Registrar van der Westhuizen in this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 30 January 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing of the application for an extension of time at 11.00am on 12 April 2023.
In accordance with order 5 of the orders made on 19 December 2022, the applicant was required to file an amended application, written submissions and any affidavit evidence by 15 March 2023. No further materials were filed by that date.
On 16 March 2023 (at 6.29pm), an amended application, written submissions and an affidavit (sworn by the applicant on 15 March 2023) were filed on behalf of the applicant. As per r 2.05(4) of the Rules, those documents were taken to have been filed on 17 March 2023.
On 17 March 2023 (at 9.55am), written submissions were filed on behalf of the first respondent (the “Minister”).
On 19 March 2023, my chambers notified the parties (via email) that the matter had been
re-listed and would now be heard by the Court at 11.00am on 25 July 2023.
On 10 July 2023, an affidavit of Ms Georgina Roberta Ellis (“Ms Ellis”) was affirmed and filed on behalf of the Minister (the “Ellis affidavit”).
On 21 July 2023, the parties were reminded of the date and location of the hearing. They were also advised that the hearing would commence at 12.30pm and were provided with instructions for an “in person” attendance at the Court.
At 1.04pm on 24 July 2023, the applicant’s representative attempted to file a notice of ceasing to act form with the Court. With that form, the applicant’s representative also provided a letter requesting urgent processing of the form (noting that the matter was listed for hearing the following day). At the time of the hearing (on 25 July 2023), the document was yet to be accepted for filing by the Court.
At 1.42pm that same day (also on 24 July 2023), Ms Ellis wrote to my chambers and sought leave for Ms Bernadette Rayment (“Ms Rayment”) to appear via video link (from Sydney) at the hearing listed on 25 July 2023.
At 5.53pm that evening (on 24 July 2023), a representative from the legal firm representing the applicant contacted my chambers to advise that “due to the change in starting time for the hearing … as well as the lodged notice of intention to withdraw as lawyer of the applicant”, the applicant’s representative sought leave to appear remotely via telephone.
Later that evening (on 24 July 2023), my chambers replied to the parties providing information in relation to appearances by telephone or video link.
When the matter came before this Court on 25 July 2023, Dr Janssen appeared on behalf of the applicant (via telephone) and Ms Rayment appeared via video link on behalf of the Minister. After the Court set out the chronology of the matter (as detailed above), Dr Janssen told the Court that he wanted to remove himself from the record as he no longer had instructions to act on behalf of the applicant.
The Court made orders as follows:
1.Parties have leave to appear by telephone or 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 applicant’s representative have leave to file and serve a notice of withdrawal as lawyer document pursuant to rule 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and must do so by no later than 4.00pm on 26 July 2023.
The Court also notified the parties that the matter would be listed for a directions hearing on 8 August 2023 at 12.30pm.
Later that day (on 25 July 2023), my chambers sent a copy of the orders (set out at [20] above) to the parties and confirmation of the new listing before the Court (on 8 August 2023).
On 26 July 2023, the applicant’s former legal representative filed a notice of withdrawal of lawyer document with this Court. Attached to that document was a notice of intention to withdraw as lawyer and a copy of the orders made by the Court on 25 July 2023. Both the notice of withdrawal of lawyer and notice of intention to withdraw as lawyer documents included an email address for the applicant.
On 27 July 2023, my chambers emailed the applicant (at the email address provided by the applicant’s former legal representative in the notice of withdrawal of lawyer document) and provided him with details of the listing notice. That email also explained how the applicant could appear at the hearing (noting that the applicant was advised that he could appear in person or via video link using Microsoft Teams).
When the matter came before the Court on 8 August 2023, there was no appearance by or on behalf of the applicant (either in person or via video link). Ms Ellis appeared (in person) on behalf of the Minister. The matter was called three times but, as outlined above, the applicant did not appear.
The Court asked Ms Ellis how she wished to proceed.
Ms Ellis advised the Court that the Minister sought to have the matter dismissed for
non-appearance pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $6,500.
In support of that position, Ms Ellis sought to rely on correspondence from my chambers to the parties (dated 25 July 2023 and 27 July 2023 as set out above). That correspondence was tendered and referenced as Exhibit 1.
Ms Ellis also sought to rely on correspondence from her office to the applicant on 27 July 2023 notifying him of the listing before the Court on 8 August 2023 and explaining that, if he did not appear at that time, the Minister would seek to have the matter dismissed and would seek costs. That correspondence was tendered and referenced as Exhibit 2.
Ms Ellis also sought to rely on the Ellis affidavit. That affidavit annexed materials which indicated that the applicant was “offshore” and no longer in Australia, that his bridging visa had ceased and that the applicant consequently did not hold a visa that would permit his re-entry into Australia. The Ellis affidavit was taken as read and in evidence.
Noting the information contained in the Ellis affidavit and the correspondence contained in Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the listing before the Court and how he could attend. The Court was also satisfied that the applicant was outside of Australia and did not hold a visa which would allow him to re-enter Australia.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions and materials filed were detailed and Ms Ellis (and, before her, Ms Rayment) were both 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.
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 thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2023
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