Ramanayake v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 923

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ramanayake v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 923  

File number(s):	PEG 232 of 2022
Judgment of:	JUDGE CAMERON
Date of judgment:	29 September 2023
Catchwords:	PRACTICE & PROCEDURE – Application for summary dismissal - non-appearance of the applicant.
Division:	General
Number of paragraphs:	8
Date of hearing:	29 September 2023
Place:	Perth
Counsel for the Applicant:	No appearance by or for the applicant
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	Submitted appearance save as to costs

ORDERS

PEG 232 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DILEEPA ARRIYAPPERUMA RAMANAYAKE

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	29 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) the application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

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 Cameron

INTRODUCTION

1. This is an application seeking judicial review of the 26 October 2022 decision of the Administrative Appeals Tribunal (“Tribunal”) affirming the decision of the delegate of the first respondent (“Minister”) to not grant the applicant, Mr Ramanayake, a Student (Temporary) (Class TU) subclass 500 visa.

2. The matter was listed this morning to determine whether an extension of time to bring this proceeding should be allowed to Mr Ramanayake, although I note that the Minister has consented to such an extension of time by indicating as much in his written submissions filed with the Court earlier this month. 

3. It is now approximately 10:25am and this matter was listed for hearing today at 10:15am.  When the matter was called on and called outside the Court, there was no appearance by or for Mr Ramanayake.  The Minister has consequently sought dismissal of the matter pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”).

   LEGISLATION & RULES

4. Rule 13.06 of the Rules provides relevantly:

   13.06   Default of appearance of a party

   (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

   …

   (c)       if the absent party is an applicant—dismiss the application;

   …

   CONSIDERATION

5. The Court advised the parties of today’s listing by an email dated 31 August 2023. Relevantly, that email was sent to Mr Ramanayake at his email address for service identified in his initiating application. It also appears on his amended application which, it should be noted, was filed only six months ago.  I also note that on the Court file is an affidavit of service filed by the Minister and, although it is not read in this matter or relied on by the Minister, I observe that that affidavit refers to the same address for service being used by the Minister recently. 

6. In the circumstances, I am satisfied that Mr Ramanayake was aware of today’s hearing but has not attended. In the circumstances, I consider that it is appropriate to make an order dismissing the application for non-appearance.  I should also observe that as the dismissal is an interlocutory one, Mr Ramanayake is entitled under the Rules to apply to have the matter reinstated.

7. As the application is to be dismissed, the Minister has sought an order for his costs.  There is nothing in the conduct of this proceeding which suggests the costs should not follow the event as they would in the ordinary course.  The Minister seeks an amount of $5,400.00 which is a sum less than the scale amount applicable to a matter which is concluded at a final hearing.  In that connection I note that although the matter was listed for an application for an extension of time, the Minister had foreshadowed his consent to an extension of time and so it is appropriate that the matter be considered to be one which has resolved at a final hearing because that is how the matter would have proceeded today, had Mr Ramanayake attended. 

   CONCLUSION

8. The application will be dismissed with costs of $5,400.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       13 October 2023