Peldon v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 446
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Peldon v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 446
File number: PEG 193 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 3 May 2024 Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 3 May 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 193 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TSHERING PELDON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
3 MAY 2024
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 $5,900.
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 for a final hearing before the Court at 1.00pm on 3 May 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.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 $5,900.
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 in the Perth Registry of this Court on 31 August 2023 (the “application”). That application is accompanied by an affidavit which was deposed by the applicant on 4 September 2023.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 27 July 2023. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Medical Treatment (Class UB) (Subclass 602) visa.
On 24 November 2023, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised.”
On 2 January 2024, my chambers sent a listing notice to the parties (by email) advising them that the matter had been listed for a final hearing at 1.00pm on 27 February 2024.
On 21 February 2024, the parties were notified (by email) that the hearing had been re-listed and would instead take place on 3 May 2024 at 1.00pm.
On 29 April 2024, the parties were reminded (by email) of the hearing date and time. They were also provided instructions for an “in person” attendance at the Perth Registry of the Court.
As outlined above, when the matter came before this Court (on 3 May 2024), there was no appearance by or on behalf of the applicant. The matter was called outside the court room three times, however, there was still no appearance by or on behalf of the applicant. Ms Grace Mickle (“Ms Mickle”) appeared on behalf of the Minister and an interpreter in the Dzongkha language had been made available to assist the applicant (via video link).
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 Abhilasha Tyagi (affirmed on 23 April 2024 and filed in this Court on 24 April 2024 (the “Tyagi affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put her on notice that, should she not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Ms Mickle how the Minister wished to proceed in the circumstances.
Ms Mickle 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 $5,900.
Noting the correspondence contained in Exhibit 1 and the materials annexed to the Tyagi affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. She was also advised of how she could appear at that hearing and the possible costs consequences of non-appearance.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Mickle 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.
The Court notes that the applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2024
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