Tran v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 236
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 236
File number: PEG 94 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 24 March 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicants – application dismissed for non-appearance pursuant to r13.06(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: 21 Date of hearing: 24 March 2023 Place: Perth Applicants: No appearance by or for the applicants Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 94 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HUYNH TU TRAN
First Applicant
QUANG LY
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
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 applicants pay the first respondent’s costs fixed in the sum of $6,500.
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 listed for a final hearing before this Court at 11.00am on 24 March 2023. When the matter was called, there was no appearance by or for the applicants.
In the circumstances, the Court made the following orders:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
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 applicants pay the first respondent’s costs fixed in the sum of $6,500.
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 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 5 May 2022 (the “application”). That application was accompanied by an affidavit which was sworn by the first applicant on 12 May 2022.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal on 8 April 2022.
On 29 July 2022, orders were made by Registrar van der Westhuizen in this Court programming the matter to a final hearing “on a date to be advised”.
On 2 September 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing at 11.00am on 24 March 2023.
On 19 March 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for an “in person” attendance at the Court.
As outlined above, when the matter came before this Court (on 24 March 2023), there was no appearance by or for the applicants. Ms Georgina Ellis (“Ms Ellis”) appeared at the hearing on behalf of the first respondent (the “Minister”).
At the hearing of the matter, Ms Ellis told the Court that she had been contacted by the first applicant via email on 19 March 2023. That email correspondence attached a notice of discontinuance which had been signed by the first applicant only.
Ms Ellis advised the Court that she had responded to that email correspondence as follows:
In order to discontinue your proceeding you must file the notice of discontinuance with the Court.
Please contact the Court registry if you need assistance with this: [email protected].
If you do not discontinue your proceeding your matter will remain listed for hearing on 24 March 2023 at 11.00am before Judge Kendall.
At the time of the hearing, neither my chambers nor the Court’s registry had been provided with a notice of discontinuance from the applicants (plural) for filing in this Court. Nor did the Court receive any correspondence from either applicant indicating that they no longer wished to proceed with their application.
Correspondence between Ms Ellis and the first applicant (as outlined above) was tendered and referenced as Exhibit 1.
The affidavit of service of Mr Benjamin Mayne (affirmed and filed in this Court on 15 March 2023) (the “Mayne affidavit”) was taken as read and in evidence at the hearing. Ms Ellis took the Court through correspondence from her office (annexed to the Mayne affidavit) outlining service of various documents and advising the applicants that, in the event that they did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek the Minister’s costs.
Correspondence from my chambers (as outlined above) was also tendered and referenced as Exhibit 2.
The Court asked Ms Ellis how the Minister wished to proceed in the circumstances.
Ms Ellis 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 the Mayne affidavit and Exhibits 1 and 2, the Court was satisfied that the applicants had been properly notified of the hearing date and time and also advised of how they could appear at that hearing. They had also been properly advised of what was required of them if they wanted to discontinue the proceedings – advice which, at the time of hearing, had not been followed.
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 applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 March 2023
0
0
0