Paladugula v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 975
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paladugula v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 975
File number(s): MLG 635 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 16 September 2024 Catchwords: MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application 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) Legislation: Migration Act 1958 (Cth) ss 116, 140, 476
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: 17 Date of last submission/s: 16 September 2024 Date of hearing: 16 September 2024 Place: Melbourne The Applicants: No appearance Counsel for the First Respondent: Mr R. O’Shannessy Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 635 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURESH PALADUGULA
First Applicant
MOUNIKA PALADUGULA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.
The application filed on 7 March 2019 by the applicants is 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) (Rules).
3.The applicants pay the first respondent's costs and disbursements of and incidental to these proceedings fixed in the sum of $7,000.00.
AND THE COURT NOTES THAT:
A.The applicants were called outside the courtroom at 10.15am today and there was no response to the call.
B.Pursuant to r 17.05(2)(a) of the Rules, the Court may vary or set aside a judgment or order made in the absence of a party.
C.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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE CUTHBERTSON
INTRODUCTION
This matter was listed for final hearing before the Court at 10.00am on 16 September 2024. When the matter commenced, there was no appearance by or on behalf of the applicants. The first respondent’s representative sought dismissal of the application for non-appearance.
In the circumstances, the Court made the following orders:
1. The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2. The application filed on 7 March 2019 by the applicants is 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) (Rules).
3. The applicants pay the first respondent's costs and disbursements of and incidental to these proceedings fixed in the sum of $7,000.00.
These reasons explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules.
BACKGROUND
On 7 March 2019, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the second respondent (the Tribunal) made on 12 January 2019. By that decision, the Tribunal affirmed a decision of the delegate of the Minister to cancel the first applicant's Student (Temporary) (class TU) High Education Sector (subclass 573) visa (the visa) under s 116(1)(b) of the Act. The Tribunal also found it had no jurisdiction to review the cancellation of the second respondent's visa, which had occurred automatically as a result of the operation of s 140 of the Act.
When filing the originating application for judicial review, the applicants only provided a mailing address for service at an address in West Footscray. No email address for service was provided with that application, however the footer of the first page of the affidavit filed in support of the application included an email address
That application, as I have already noted, was filed on 7 March 2019.
On 22 April 2021, a Notice of Address for Service form was filed by the applicants with the Court, which notified that the applicants’ postal address for service had changed to another address in West Footscray. The form but also provided an email address for service which was the same as that which appeared in the footer of the affidavit. Subsequently, all correspondence from the Court to the applicants has been sent to that email address.
Relevant correspondence sent by the Court included a Notice of Listing of this matter for call over, which was sent to the parties, including the applicants, on 21 March 2024. That Notice of Listing was sent to the applicants via the email address for service. On 3 April 2024, the call over occurred with the first applicant appearing by telephone on behalf of both applicants. Procedural orders were made to ready the matter for final hearing, including for the applicants to provide any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which they sought to rely. They were given an opportunity to do that on or before 17 April 2024. I note there is nothing on the court file to indicate that any material has been filed by the applicants in accordance with that order.
An order was also made for the Minister to file and serve any written submissions and any additional evidence on which they proposed to rely on or before 24 April 2024. The Minister lodged submissions with the Court on 24 April 2024 which were accepted for filing on 30 April 2024.
On 3 April 2024, the Registrar also made an order requiring the Minister to file and serve, at least seven days before the hearing, an affidavit of service of the court book, the first respondent's written submissions, and any additional evidence it had filed if the applicants were self-represented.
As the applicants were self-represented, the Minister duly filed an affidavit affirmed by Emma Louise Hubball on 9 September 2024. That affidavit sets out a copy of the court book was served on the applicants electronically on 26 May 2021. It was sent to the applicants’ email address for service. On 31 July 2023, a letter from the Minister's solicitors enclosing a sealed hard copy of the court book was sent to the applicants’ postal address for service, which was the address in West Footscray notified to the Court in 2019. Finally, on 1 May 2024, the Minister's solicitors emailed the applicants a sealed copy of the Minister's submissions (after providing an unsealed copy on 24 April 2024) to the email address for service that had been provided and has consistently been used.
Finally, on 13 August this year, the Court sent to the parties, including the applicants, a Notice of Listing of this matter for final hearing before me on 16 September 2024 at 10am. That is today's date. That email was sent, relevantly, to the applicants at their email address.
The present time is 10:32am, and the applicants are still not present in the Court. I am satisfied that the applicants were notified of today's hearing date by the court at the email address provided as the nominated email address for service, and that the applicants have, for whatever reason, chosen not to attend. I am further satisfied that the non-attendance has occurred in circumstances where the applicants were properly served notice of the hearing.
I am satisfied that there is no explanation for their non-attendance. There has been no contact with the Court to explain their non-attendance. I also note the submissions of the Minister's legal representative, Mr O'Shannessy, that he has attempted to contact the applicants this morning by telephone on three different numbers that appear on the face of the file in relation to the matter, and has been unsuccessful in raising them. In fact, I was told that the phone numbers do not appear to be functioning at present. There was no answer or a dial tone.
CONCLUSION
In all of the above-mentioned circumstances, I dismiss the proceedings pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), consequent upon the non-appearance of the applicants.
The Minister has also sought costs in respect of the proceedings in the sum of $7,000.00. I note that sum falls short of the relevant scale in respect of a final hearing. I accept that the Minister's representative has attended today in expectation of and having prepared for a final hearing, and that it is appropriate to award the sum sought in the circumstances. I am satisfied that costs should follow the event, and the amount sought is reasonable.
I should also note the name of the second respondent ought be changed to reflect the current name of the Minister, being “Minister for Immigration and Multicultural Affairs”.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 16 September 2024
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