Phan v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 80
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Phan v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 80
File number: PEG 108 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 31 January 2024 Catchwords: MIGRATION – New Zealand Citizen (Family Relationship) 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 r 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) & 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 31 January 2024 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 108 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VAN NHAN PHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.The substantive application filed by the applicant on 19 June 2023 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 in relation to the substantive application 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 final hearing at 1.00pm on 31 January 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 substantive application filed by the applicant on 19 June 2023 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 in relation to the substantive application 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 19 June 2023 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 15 June 2023 (and filed in this Court on 19 June 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 on 22 May 2023.
On 22 August 2023, orders were made by Registrar Downing in this Court programming the matter to a final hearing “on a date to be advised”.
On 30 August 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing at 1.00pm on 31 January 2024.
On 25 January 2024, the parties were reminded of the date, time and location of the hearing by my chambers. They were also provided instructions for an “in person” attendance at the Perth Registry of the Court.
As outlined by this Court in Phan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 79 (“Phan”), the applicant sought an adjournment on medical grounds. An interlocutory hearing in that regard was dismissed for non-appearance pursuant to r 13.06(1)(d) of the Rules.
Correspondence between the applicant and my chambers (as set out in Phan) was tendered and referenced as Exhibit 1.
Correspondence from my chambers to the parties regarding the listing of the hearing and hearing arrangements was tendered and referenced as Exhibit 2.
As outlined above, when the matter came before this Court (on 31 January 2024) for a hearing of the substantive application, there was no appearance by or on behalf of the applicant. Ms Georgina Ellis (“Ms Ellis”) appeared at the hearing on behalf of the Minister.
The affidavit of service of Aatika Ismailjee (affirmed and filed on 30 January 2024) (the “Ismailjee affidavit”) was taken as read and in evidence.
The Court asked Ms Ellis how the Minister wished to proceed in the circumstances.
Ms Ellis, relying on the correspondence set out in Exhibit 2 and the Ismailjee affidavit, advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibit 2 and the Ismailjee affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date, time and how he could appear at that hearing (including being given an option to either appear in person or via video link).
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 Ellis 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 his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 February 2024
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