Song v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 567

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Song v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 567

File number(s):	SYG 2789 of 2020
Judgment of:	JUDGE LAING
Date of judgment:	10 April 2025
Catchwords:	MIGRATION – non-appearance by or on behalf of the applicants where a solicitor remains on the record for the applicants – limited engagement with the proceedings more generally – prudent course where instructions are withdrawn but no notice of this has been filed by or on behalf of an applicant – potential exposure to costs if this does not occur – application dismissed for non-appearance
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) 2021 (Cth) rr 9.01, 9.03, 13.06 and 17.05
Cases cited:	Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98
Division:	General
Number of paragraphs:	11
Date of hearing:	10 April 2025
Place:	Sydney
Applicants:	No appearance
Solicitor for the First Respondent:	Ms J Schultz of Mills Oakley
Second Respondent:	Submitting notice, save as to costs

ORDERS

SYG 2789 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MOUNGHWA SONG

First Applicant

JIWON CHOE

Second Applicant

JAEHYEOK CHOE

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	10 APRIL 2025

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 first and second applicants pay the first respondent’s costs fixed in the amount of $6,100.

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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Partner (Temporary) (Class UK) visas.

2. The matter was originally listed for hearing before another judge of this Court at 10.15 am this morning. On 24 March 2025, orders were made transferring the matter to my docket and listing the matter for hearing at 10.00 am this morning. Information regarding the location of the hearing was provided in the orders. The parties were notified of this by email dated 24 March 2025.

3. On 9 April 2025, the Minister’s representative sent a reminder email to the applicants confirming the time and location of the hearing.  

4. The applicants are legally represented in this matter. I have confirmed that the foregoing correspondence has been sent to the correct Address for Service that was provided in relation to the applicants’ solicitor.

5. I have waited until the passing of the original start time for the hearing.  It has been confirmed that the applicants and their solicitor are not in the courtroom where this matter was originally scheduled to be heard.  The matter has been called outside the courtroom. An attempt to contact the applicants’ representative by telephone has been unsuccessful.

6. It is not entirely clear what has happened this morning. However, the non-appearance has occurred in the context of a certain lack of engagement by the applicants in this matter. In particular, no written submissions have been filed on behalf of the applicants in accordance with procedural orders that have been made in the matter. 

7. It may be that the applicants have terminated their lawyer’s instructions. If so, a Notice of Address for Service confirming this ought to have been filed. No Notice of Withdrawal of Lawyer has alternatively been filed in accordance with r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). 

8. This situation has the potential to create some confusion. Where that confusion results in adjournment of the matter, then this may raise questions regarding costs (and who should pay them) if a hearing has been unable to proceed. It would therefore be prudent for any solicitor whose instructions have been withdrawn to provide clarity to the situation through withdrawing in accordance with r 9.03 of the GFL Rules if no notice has been filed by or on behalf of their client(s) in accordance with r 9.01(2) of the GFL rules: see Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98 at [11] (Judge Given).

9. In any event, I am satisfied that the applicants were appropriately notified of the listing today. In these circumstances, the Minister seeks dismissal of the application pursuant to r 13.06(1)(c) of the GFL rules.

10. I am satisfied that is an appropriate course. If the applicants have not, in fact, withdrawn their lawyer’s instructions or some misadventure has caused the non-appearance today, then it would be open to the applicants to seek reinstatement of the matter pursuant to r 17.05 of the GFL rules.

11. The Minister also seeks an order that the first and second applicants pay his costs fixed in the amount of $6,100. I am satisfied that this is an appropriate amount, having regard to the Court’s scale and also to the work that has been performed in this matter.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       10 April 2025