Zhang v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 928
Federal Circuit and Family Court of Australia
(DIVISION 2)
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 928
File number(s): ADG 447 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 3 November 2022 Catchwords: PRACTICE AND PROCEDURE – Non-appearance by applicant – where initial call to applicant was answered by applicant – where subsequent calls to same number unanswered – where applicant alleges legal representation – adjourned to an in person hearing in Adelaide Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 5 Date of last submission/s: 3 November 2022 Date of hearing: 3 November 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms M Pappas via CISCO Webex Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 447 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LIANBO ZHANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
3 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The final hearing of the matter be adjourned to 2.00pm ACDT on 15 November 2022 for hearing in-person in Adelaide.
2.If any lawyer seeks to appear for the Applicant that lawyer must file and serve a Notice of Address for Service on or before 4.00pm ACDT on 11 November 2022.
3.Costs of today be reserved
AND THE COURT NOTES THAT:
A.If the Applicant, or the Applicant’s lawyer, do not appear at the adjourned final hearing in person in Adelaide at 2.00pm on 15 November 2022 the originating application may be dismissed 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).
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
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
Before the Court is a matter listed for final hearing for judicial review of an application filed on 13 November 2019 (“Originating Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, Mr Lianbo Zhang (“Mr Zhang”). The Court notes that there is no appearance by or for Mr Zhang.
The Court is informed that upon the presiding Judge’s Associates calling the telephone number on the Originating Application Mr Zhang answered the first call (“First Telephone Call), made a few minutes ago, and in consequent discussions with them, through the interpreter, Mr Zhang confirmed that the email address on the Originating Application is an email address which he says is his migration agent’s email address. Mr Zhang also says that his migration agent is a lawyer. No appearance has however been entered in these proceedings by a lawyer, and no migration agent has a right of appearance other than by leave of the Court which the Court ventures to observe would only be granted in exceptional circumstances. The matter poses some difficulty because it is obvious that Mr Zhang is available to be heard but is now not answering his telephone. The First Telephone Call was apparently disconnected in some way during the conversation involving the interpreter. Two subsequent calls by the Associates were then not answered by Mr Zhang.
The Court notes that orders were made at direction hearings on 25 May 2022 and 15 June 2022, both sets of orders noting that the matter may be dismissed for non-appearance by Mr Zhang at the final hearing today. The Court is reluctant to do that in the circumstances where:
(a)Mr Zhang is obviously “available”;
(b)Mr Zhang’s telephone is now not being answered; and
(c)Mr Zhang has appeared to indicate that may have someone who is supposed to be acting for him, and that the email address concerned – even though it reflects Mr Zhang’s actual name – is his migration agent’s email address, but that his migration agent is also a lawyer.
In those circumstances the final hearing of the matter will be adjourned to 2.00 pm ACDT on 15 November 2022 for final hearing in person in Adelaide. If any lawyer seeks to appear for Mr Zhang, that lawyer must file and serve a notice of address for service on or before 4.00 pm ACDT on 11 November 2022. In the circumstances and depending on what occurs on 15 November, the Court is prepared to entertain an application for a costs order over and above any amount provided for in the costs schedule as the first directions hearing was adjourned on 25 May 2022 to 15 June 2022, and now it has been necessary to adjourn the final hearing. There is adequate authority for the proposition that the Court can make costs orders over and above the scheduled amount in migration proceedings and where appropriate to do so. The costs of today will be reserved.
There will be a note to the Court’s orders that if Mr Zhang, or his lawyer, do not appear at the adjourned final hearing in person in Adelaide at 2.00pm on 15 November 2022 the Originating Application may be dismissed 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).
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 November 2022
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