Yu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 410
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 410
File number: MLG 1483 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 2 May 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – 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: Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 2 May 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr M Gao Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 1483 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUNMING YU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 MAY 2024
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, Citizenship and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs, fixed in the sum of $3,900.
5.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 before this Court for a hearing of the application for an extension of time (via video link) at 12.30pm (AEST) / 10.30am (AWST) on 2 May 2024. 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, Citizenship and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs, fixed in the sum of $3,900.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 Melbourne Registry of this Court at 4.57pm on 28 June 2022 (the “application”). That application is accompanied by an affidavit which was deposed and filed by the applicant on 28 June 2022.
The substantive application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 22 May 2020. As per s 477(1) of the Migration Act 1958 (Cth), the application ought to have been filed within 35 days of the date of the Tribunal’s decision (that is, by 27 June 2020).
The decision in this matter was made on a Sunday. The 35-day time period would otherwise have ended on Sunday, 26 June 2020. In the circumstances, the substantive application is deemed to have been due to be filed by “the next day that is not a … Sunday …” (being Monday, 27 June 2020): s 36(2)(b) of the Acts Interpretation Act 1901 (Cth). The application was not filed within that time period. Rather, the application in this matter was filed 732 days outside of the requisite time period.
On 21 September 2022, orders were made by Registrar van der Westhuizen of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised.”
On 29 December 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a hearing of the application for an extension of time (by video link) at 12.30pm (AEST) / 10.30am (AWST) on 2 May 2024.
On 29 April 2024, the parties were reminded (by email) of the hearing date and time. They were also provided instructions in relation to how they could attend the hearing by video link (using Microsoft Teams).
As outlined above, when the matter came before this Court (on 2 May 2024), there was no appearance by or on behalf of the applicant. Mr Max Gao (“Mr Gao”) appeared (by video link) at the hearing on behalf of the Minister.
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of Mr Alvin Sharma (affirmed and filed on 24 April 2024 (the “Sharma affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister may seek to have the matter dismissed with costs.
The Court asked Mr Gao how the Minister wished to proceed in the circumstances.
Mr Gao 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 and sought the Minister’s costs, fixed in the sum of $3,900.
Noting the correspondence contained in Exhibit 1 and the Sharma affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. The applicant was also advised of how he could appear at that hearing (via video link using Microsoft Teams) and the possible costs consequences of non-appearance.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate. The Minister’s written submissions were detailed and Mr Gao was prepared to make oral submissions, as required, in relation to the application for an extension of time.
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 applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 May 2024
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