Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 275
•15 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Park v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 275
File number(s): MLG 173 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 15 November 2021 Catchwords: MIGRATION – Judicial review application – dismissal for non-appearance
PRACTICE AND PROCEDURE – Dismissal for non-appearance
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Migration Act 1958 (Cth) s 476
Division: Division 2 General Federal Law Number of paragraphs: 5 Date of hearing: 15 November 2021 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Mr M. Daly Solicitor for the First Respondent: Mills Oakley Lawyers For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 173 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUNSHIL PARK
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:
15 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The originating application filed on 24 January 2018 be 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).
3.The Applicant pay the First Respondent’s costs in the sum of $3,930 by 15 December 2021.
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
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
The originating application in these proceedings was filed by the applicant, Ms Eunshil Park (“Ms Park”) on 24 January 2018 and seeks judicial review (“Judicial Review Application”), pursuant to s 476 of the Migration Act 1958 (Cth), of a decision of the Administrative Appeals Tribunal made on 18 January 2018. The Tribunal Decision affirmed a decision of a delegate of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), not to grant Ms Park a Student (Temporary) (Class TU) visa.
The matter was the subject of a directions hearing before Registrar Allaway on 31 October 2018, at which time the matter was listed for a Show Cause hearing before Judge McNab on 14 July 2020. For reasons which are not apparent to the Court, the parties were sent a Notice of Adjournment from the Melbourne Registry of the Court on 21 August 2019, adjourning the matter to a date to be fixed.
The Court notes that the matter was allocated to a judge in the Perth Registry of this Court in November 2021 and the matter was listed for directions today. The matter was called for the directions hearing today and there has been no appearance by Ms Park. The Court notes that it has endeavoured to contact Ms Park on a mobile telephone number, which was provided with her original Student Visa application, to no avail. The Court has also endeavoured to contact Ms Park via an email, which was provided with the Judicial Review Application, but has received an ‘undeliverable’ response at that email. The Minister’s representative has indicated that they, likewise, have endeavoured to correspond with Ms Park via that electronic medium and received a similar ‘undeliverable’ response.
The Court has also sent by Express Post a copy of the Notice of Listing for today’s directions hearing to the residential address provided by Ms Park on 31 October 2018 in a Notice of Address for Service, which the Court notes is the same date as the directions hearing before Registrar Allaway. However, the Court has been advised that no person such as Ms Park is known at that address. The Court also notes that it has been informed by Counsel for the Minister that the Minister’s lawyers have sent by Express Post notification of today’s hearing to the same residential address and that that has been delivered. However, in all the circumstances outlined above, there is no appearance by Ms Park today.
In those circumstances, the Court is of the view that it is appropriate to dismiss 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) and to make a cost order in the scale amount, as sought by the Minister. The Court will, therefore, make orders including a name change order for the Minister.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 November 2021
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