Pearson v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 151
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pearson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 151
File number: MLG 1876 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 22 February 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of 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 (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 22 February 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1876 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARTIN PEARSON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 FEBRUARY 2024
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 applicant pay the first respondent’s costs, fixed in the sum of $5,000.
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 this Court for a hearing of the application for an extension of time (via video link) at 2.00pm (AEDT) / 11.00am (AWST) on 22 February 2024. When the matter was called, there was no appearance by or on behalf of the applicant.
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 applicant pay the first respondent’s costs, fixed in the sum of $5,000.
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 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 in the Sydney Registry of this Court on 14 June 2019 (the “application”). That application was accompanied by an affidavit which was affirmed (and filed in this Court) by the applicant’s former solicitor, James John Hammond, on 14 June 2019.
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 9 May 2019. As per s 477(1) of the Migration Act 1958 (Cth) (the “Act”), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 13 June 2019). It was not filed within that time period. Rather, the application in this matter was filed one day outside of the requisite time period.
On 11 January 2022, orders were made by Registrar van der Westhuizen of this Court programming the matter to a hearing of the application for an extension of time and, if the extension of time was granted, a final hearing of the substantive application “on a date to be advised”.
On 23 February 2023, the applicant’s former solicitor filed Notice of Intention to Withdraw as Lawyer (the “Notice”) and Notice of Withdrawal of Lawyer forms in this Court. The Notice included an email address for the applicant (the “applicant’s email address”). The applicant’s former solicitor also filed an Affidavit of Service (on 23 February 2023) indicating that the Notice was served on the applicant by email (sent to the applicant’s email address) on 9 February 2023.
On 21 December 2023, my chambers sent a listing notice to the parties (via email, including an email sent to the applicant’s email address) advising them that the matter had been listed for a hearing of the application for an extension of time (by video link) at 2.00pm (AEDT) / 11.00am (AWST) on 22 February 2024.
On 20 February 2024, the parties were reminded of the date, time and location of the hearing. They were also provided instructions in relation to how they could attend that hearing by video link (using Microsoft Teams). This email was also sent to the applicant’s email address.
Noting that the Court had not had any contact from the applicant since the applicant’s former representative ceased acting for him, the Court again wrote to the parties by email (on 20 February 2024, including to the applicant’s email address) as follows:
I refer to the email correspondence below and the hearing of the application for an extension of time listed on 22 February 2024 at 2.00pm (AEDT) / 11.00am (AWST).
His Honour Judge Kendall notes that Notice of Intention to Withdraw as Lawyer and Notice of Withdrawal of Lawyer forms were filed by the applicant’s former solicitors in February 2023. However, no updated Notice of Address for Service has been filed by the applicant and the applicant has not filed any materials or made any contact with the Court in this matter since that date.
Chambers asks that the applicant, Mr Pearson, please confirm receipt of this email correspondence as soon as possible.
Chambers also asks the Minister’s representatives if the Minister has any updated contact details for Mr Pearson which may assist the Court in contacting him.
The Court notes that, in the event that the applicant does not appear at the hearing of this matter by video link on Thursday (22 February 2024) at 2.00pm (AEDT) / 11.00am (AWST), the Court may dismiss application 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).
Ms Kristina Petrovski (“Ms Petrovski”), solicitor for the first respondent (the “Minister”), advised the Court (on 22 February 2024) that the last email address in the Minister’s records was the same as the applicant’s email address provided by his former solicitor (and the email address the Court had been using to attempt to correspond with him).
The applicant did not respond to the Court’s correspondence (outlined above).
As outlined above, when the matter came before this Court (on 22 February 2024), there was no appearance by or on behalf of the applicant. Ms Petrovski appeared (by video link) at the hearing of the extension of time application on behalf of the Minister.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of Ms Petrovski (affirmed and filed on 15 February 2024 (the “Petrovski affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing (on 22 February 2024), the Minister may seek to have the matter dismissed with costs.
The Court asked Ms Petrovski how the Minister wished to proceed in the circumstances.
Ms Petrovski advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $5,000.
Noting the correspondence contained in Exhibit 1 and the Petrovski affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (via video link using Microsoft Teams).
In relation to the costs order sought by the Minister, the Court noted that (in written submissions filed in this Court on 7 February 2024), the Minister had advised the Court that he did not oppose the applicant being granted the extension of time (pursuant to s 477(2) of the Act) and, on that basis, the Minister’s written submissions were prepared for a final hearing (not an extension of time hearing). Ms Petrovski was also prepared to make oral submissions, as required by the Court, including in relation to the substantive application. On that basis, the Court determined that the amount sought was appropriate in the circumstances.
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 am advised that at approximately 3.30pm (AEDT) / 12.30pm (AWST) (being approximately one and a half hours after the hearing was due to commence), the applicant phoned the Court’s registry team to advise that he had attempted to join the hearing but had been unable to do so. He also confirmed that he had received the email correspondence from my chambers with the listing details and the relevant link to join the hearing.
Unfortunately, by the time the applicant contacted the Court, the hearing had concluded and the orders (outlined at [2] above) had already been pronounced and published. The Court had sent a copy of those orders to the parties by email (including to the applicant’s email address) prior to the applicant’s phone call.
No further contact has been received from the applicant in this matter. This is unfortunate.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules. Should that occur, my chambers will list that application as a matter of priority.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2024
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