Williams v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 314
•5 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williams v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 314
File number: MLG 3835 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 5 March 2025 Catchwords: MIGRATION – Cancellation of a Temporary Work (Skilled) (Class UC) (Subclass 457) visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – applicant offshore – no appearance by or on behalf of 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 5 March 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms A Lean Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3835 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADAM WILLIAMS
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 MARCH 2025
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 name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $6,000.
6.Written reasons for judgment will 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 (by video link) before the Court at 3.00pm (AEDT) / 12.00pm (AWST) on 5 March 2025. 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.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 name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $6,000.
6.Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 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 which was filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the “FCCA”) on 17 December 2018 (the “application”) (Court Book (“CB”) 145-151). That application was accompanied by an affidavit which was sworn by the applicant (and filed in the FCCA) on 17 December 2018 (CB 152-169).
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 then Administrative Appeals Tribunal (the “Tribunal”) on 14 November 2018 (CB 136-144). In that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) cancelling the applicant’s Temporary Work (Skilled) (Class UC) (Subclass 457) visa (CB 56-69).
On 13 November 2020, orders were made by Registrar Carlton of the FCCA programming the matter to a “final hearing on a date to be advised”.
On 3 July 2024, my chambers sent a listing notice to the parties (by email) advising them that the matter had been listed for a final hearing before this Court (by video link) on 5 March 2025 at 3.00pm (AEDT) / 12.00pm (AWST).
The Court notes that the applicant provided two email addresses to the Court since filing his application with the Court and the listing notice was sent to both email addresses. Unfortunately, my chambers received notification that the emails could not be delivered to either address. In the circumstances, a listing notice was also sent to the applicant by post to the most recent residential address provided by him. The hard copy of the listing notice also included instructions about how the applicant could attend that hearing by video link (using Microsoft Teams).
On 26 February 2025, an affidavit of Ms Emma Louise Hubball (affirmed on 26 February 2025 (the “Hubball affidavit”)) was filed on behalf of the Minister. That affidavit stated that the applicant had “departed Australia on 29 May 2024 at 12.09pm” and “has not returned to Australia since that date” (see [5] of the Hubball affidavit).
On 3 March 2025, the parties were reminded by my chambers of the date and time of the hearing. They were also given instructions about how they could attend that hearing by video link (using Microsoft Teams).
As outlined above, when the matter came before this Court (on 5 March 2025), there was no appearance by or on behalf of the applicant.
Ms Alexandra Lean (“Ms Lean”) from Mills Oakley Lawyers appeared at the hearing (by video link) on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). That correspondence was tendered (together) and referenced as Exhibit 1.
The Court Book (filed on behalf of the Minister on 16 November 2020) was also tendered and referenced as Exhibit 2.
The Court also confirmed that it had before it the Hubball affidavit, which was taken as read and in evidence.
The Court further confirmed that it had before it an affidavit of Mr Gianluca Maiolo Rossi (affirmed and filed on 5 March 2025 (the “Rossi affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Rossi affidavit was also taken as read and in evidence.
The Court asked Ms Lean how the Minister wished to proceed.
Ms Lean advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules. Ms Lean also sought the Minister’s costs, fixed in the sum of $6,000.
Noting the correspondence contained in Exhibits 1 and 2 and the Hubball and Rossi affidavits, the Court was satisfied that the applicant was no longer residing in Australia and that he had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (by video link) and the possible cost consequences of failing to attend.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Lean was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the application 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 twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 6 March 2025
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