Yang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 123
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 123
File number: PEG 145 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 23 February 2022 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – no appearance by or for the applicants – application dismissed for non-appearance pursuant to rule 13.06(1)(c). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06 Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 23 February 2022 Place: Perth Applicants: No appearance Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 145 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LIPING YANG
First Applicant
JAEKYUNG SHIM
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 FEBRUARY 2022
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 applicants pay the first respondent’s costs, fixed in the sum of $6,500.
AND IT IS NOTED THAT: the Court will not provide a written version of the reasons for judgment in relation to dismissal as delivered today, unless the Court receives a request in writing from either party seeking that written reasons be published.
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:
This matter was listed for a final hearing at 10.00am today (being on 23 February 2022). The applicants did not appear at today’s hearing. The Court attempted to contact the applicants and left a message advising them that the hearing was to continue.
By way of background, the Court notes that the first applicant wrote to chambers at 12.29am on the morning of the hearing requesting an adjournment as follows:
Respected your Honour,
I am writing in regarding my tomorrow’s hearing.
The Purpose of my appeal to challenge the AAT decision about my visa application which refused on the basis of nomination decision where AAT never contacted my employer before the decision. My employer contacted FCC to find out who can appear in the court and they find out that we need to apply for a seperate FCC application for the nomination decision as well as my employer never received any correspondence from AAT before the decision. Can you please give us some time so my employer can lodge an FCC application for the nomination decision and then I will submit those documents in the court.
I will be really grateful if you provide us with this opportunity.
It is clear, from the nature of that correspondence, that the first applicant was aware that the hearing today would proceed.
At 8.54am, the Minister’s representative responded to that email opposing the adjournment request.
At 9.28am, my chambers responded to the parties to advise that the hearing would proceed and that the issue of an adjournment request would be dealt with at that time. That correspondence read as follows:
Dear parties
Chambers confirms receipt of the correspondence and attachments below.
Chambers further confirms that the hearing will proceed at 10.00am this morning and that the parties will be heard in relation to the adjournment request at that time.
The applicants have not attended the hearing.
The Court asked Ms Tattersall, the representative for the Minister, if there was any correspondence that verified that her firm had advised the applicants of today’s hearing.
Ms Tattersall confirmed that an email had been sent to my chambers the previous afternoon which attached two relevant emails (one verifying of service for the court book and one verifying serviced of the Minister’s written submissions). Ms Tattersell explained that the “letter serving the submissions” clearly put the first applicant on notice of today’s hearing and that the Minister would seek for the matter to be dismissed with costs in the event that she did not attend. That letter did say that she was required to attend the court in person. However, the court subsequently emailed both parties advising that the hearing would take place by Microsoft Teams.
The Court has referenced the correspondence from the Minister as Exhibit 1. The correspondence that was received last night and the response from chambers is referenced as Exhibit 2.
Ms Tattersall asked that the matter be dismissed for non-attendance pursuant to rule 13.06(1)(c) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”).
In the circumstances of this matter, the Court is satisfied that the matter should be dismissed pursuant to rule 13.06(1)(c) of the Rules (as opposed to rule 13.06(1)(e) of the Rules).
Rule 13.06(1)(c) of the Rules allows the Court to “dismiss with costs” when an applicant is notified of a proceeding or a matter to be heard in this Court and the applicant does not attend.
On the basis of the materials now before the Court (as referenced above), the Court is satisfied that the applicants were advised of today’s hearing. The court notes, in particular, the contents of Exhibit 1 which show that the applicants were notified that the matter would proceed today.
It is noted that that correspondence initially advised that the applicants would be required to attend in Court but that subsequent email exchanges (to which the first applicant responded) made it clear that the matter would proceed via Microsoft Teams. Further, the applicants were told “how” to attend.
In relation to Exhibit 2, the Court notes that the first applicant wrote to my chambers late last night (at 12.29am in the morning) and asked for an adjournment.
When my chambers accessed that email, the applicants were advised that the hearing would still take place and the request for an adjournment would be heard at that time.
The matter was called. My associate endeavoured to contact the applicants by telephone but the applicants did not respond. My associate left a message for the applicants but the applicants did not call back.
In the circumstances, and on the basis of the materials before it, the Court is satisfied that the applicants were given every opportunity to attend Court today but did not attend.
The Court asked Ms Tattersall what she sought in relation to costs. Ms Tattersall sought an order that the applicants pay the Minister’s costs, fixed in the sum of $6,500. Ms Tattersall noted that that amount was below the set scale amount.
In the circumstances of this matter, the Court is satisfied that the amount sought by the Minister (through Ms Tattersall) is appropriate. This matter was prepared to go to a hearing, and the Minister’s written submissions were detailed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 February 2022
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