Ting v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 899
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ting v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 899
File number: SYG 1295 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 28 October 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – applicant appeared at start of hearing and then disconnected and did not reconnect – hearing rescheduled to the following day to allow the applicant a further opportunity to attend – no appearance by or for 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 Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 28 October 2022 Place: Perth Counsel for the Applicant: No appearance Counsel for the Respondents: Ms S Roberts Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 1295 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KWANG YIING TING
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
28 October 2022
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 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).
3.The applicant pay the first respondent’s costs fixed in the sum of $5,400.
4.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 initially listed before the Court for a final hearing at 2.00pm (AEDT) / 11.00am (AWST) on 27 October 2022. Although the applicant initially appeared by video, he “disconnected” shortly after the commencement of the hearing. The Court was unable to reconnect with the applicant at that time.
With the consent of counsel for the first respondent (the “Minister”), the matter was adjourned until 2.45pm (AEDT) / 11.45am (AWST) on 28 October 2022. When the matter was called on that date and at that time, there was no appearance by or for 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 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).
3. The applicant pay the first respondent’s costs fixed in the sum of $5,400.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 above. They explain why the Court dismissed the matter for non-appearance.
Background
Before the Court is an application for judicial review filed in the Sydney Registry of this Court on 8 May 2018 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 4 May 2018 and filed in this Court on 8 May 2018.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a Confirmation Decision made by the Administrative Appeals Tribunal on 16 April 2018.
On 31 May 2018, orders were made by Registrar Morgan in this Court programming the matter to a callover on 7 November 2019.
At the callover, Judge Emmett of this Court made orders programming the matter to a hearing on 30 June 2020.
On 25 May 2020, Judge Emmett made orders for that hearing to be vacated and for the parties to be notified of a new hearing date in due course.
On 30 March 2022, orders were made by Registrar van der Westhuizen in this Court programming the matter to a final hearing on 6 October 2022.
On 9 September 2022, my chambers notified the parties that the hearing listed on 6 October 2022 had been vacated and that the matter had been re-listed for hearing on 27 October 2022 at 2.00pm (AEDT) / 11.00am (AWST).
On 20 October 2022, the parties were reminded by my chambers of the date, time and location of the hearing. The parties were also given instructions on how to attend that hearing by video link (using Microsoft Teams).
When the matter came before me (on 27 October 2022), Ms Sophie Roberts (“Ms Roberts”) appeared on behalf of the Minister via video link. The applicant also appeared via video link. The hearing commenced shortly after 2.00pm (AEDT) / 11.00am (AWST). Unfortunately, when I asked the applicant to “switch on his camera”, the applicant left the hearing or was disconnected.
I adjourned the hearing briefly to allow the applicant time to reconnect. Attempts were also made (unsuccessfully) to contact the applicant.
In the circumstances, and with the consent of the Minister’s legal representative, I adjourned the hearing to 28 October 2022 at 2.45pm (AEDT) / 11.45am (AWST).
Later that morning (at 2.39pm (AEDT) / 11.39am (AWST) on 27 October 2022), the applicant emailed Ms Roberts for the Minister and advised as follows: “meeting disconnected … suddenly cannot get back into it”.
Ms Roberts responded to the applicant via email at 3.28pm (AEDT) / 12.28pm (AWST) as follows:
Your matter has been adjourned and re-listed for hearing tomorrow at 2.45pm, Sydney time. We will receive an email from his Honour’s Associate shortly confirming details of the listing.
Later that afternoon, my chambers wrote to the parties confirming the date, time and location of the rescheduled hearing. The parties were also given instructions on how to attend that hearing by video link using Microsoft Teams. This correspondence was tendered and referenced as Exhibit 1 at the rescheduled hearing on 28 October 2022.
Shortly before the rescheduled hearing (on 28 October 2022), my Associate (with the aid of an interpreter in the Mandarin language) attempted to phone the applicant. Unfortunately, the applicant did not respond.
As outlined above, when the matter came before the Court (on 28 October 2022), there was no appearance by or for the applicant. Ms Roberts appeared via video link, again, on behalf of the Minister.
The affidavit of service of Ms Roberts (affirmed and filed on 20 October 2022) (the “Roberts affidavit”) was taken as read and in evidence. Correspondence from my chambers (as outlined above) was tendered and referenced as Exhibit 1.
I asked Ms Roberts how the Minister wished to proceed in the circumstances.
Ms Roberts advised me that the Minister sought to have the matter 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $5,400.
Noting the correspondence contained in the Roberts affidavit and Exhibit 1, I was satisfied that the applicant had been properly notified of the rescheduled hearing date and time and advised of how he could appear at that hearing.
In relation to the costs order sought by the Minister, I determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Roberts was prepared to make oral submissions as required.
Conclusion
In the circumstances, I made orders dismissing the matter for non-appearance and awarded costs to the Minister, as outlined at [2] above.
I note that, following the hearing, and after orders had been made, the applicant again wrote to Ms Roberts for the Minister, stating:
Hi Sophie
I could not get it connected
Ms Roberts responded to that email correspondence as follows:
I note that as you had not joined the Microsoft Teams link for today’s hearing by the scheduled start time of 11:45am (AWST)/2:45pm (AEDT), his Honour’s Associate attempted to contact you by telephone but the call went straight to voicemail.
Your application was dismissed with costs at approximately 3:00pm today under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Should you wish to ask the Court to reinstate your application, it is open to you to file an application in a proceeding rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to seek that the orders made by Judge Kendall today be set aside.
This situation is unfortunate. It appears the applicant does seek a hearing. I am, however, satisfied that the applicant was notified of the rescheduled hearing date and the Court gave the applicant every opportunity to attend the hearing on two consecutive days. The applicant did not do so. The application was dismissed and costs ordered prior to the applicant contacting Ms Roberts.
For the applicant’s benefit, I can confirm that, as outlined by Ms Roberts in her email correspondence to the applicant, the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 1 November 2022
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