ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 834

Federal Court of Australia

ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 834 File number: NSD 1285 of 2021

Judgment of: PERRY J

Date of judgment: 6 July 2022

Date of publication of reasons: 18 July 2022

Catchwords: MIGRATION – application for judicial review dismissed with costs under rule 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) for failure by applicant to appear

Legislation: Migration Act 1958 (Cth) ss 415, 417 Federal Court Rules 2011 (Cth) rr 5.22, 5.23

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 15

Date of hearing: 6 July 2022

Counsel for the Applicant: The appellant did not appear

Solicitor for the First Respondent: Mills Oakley

Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs

Solicitor for the Second Respondent: Mills Oakley

ORDERS NSD1285 of 2021

BETWEEN: ENR21 Applicant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by: PERRY J DATE OF ORDER: 6 JULY 2022

THE COURT ORDERS THAT: 1. The application for judicial review made pursuant to s 39B of the Judiciary Act 1903 (Cth) be dismissed in accordance with rule 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) on the basis that the applicant is in default for the purposes of rule 5.22(c) of the Federal Court Rules. 2. The applicant is to pay the first respondent's costs as agreed or assessed. 3. For the purposes of any application to set aside or vary these orders, time will not commence to run until the day after the date on which written reasons are published. THE COURT NOTES THAT: 4. When the matter was called on for a first case management hearing at approximately 9.48am on 6 July 2022, there was no appearance for the applicant. 5. Reasons for the ex tempore judgment delivered by Justice Perry on 6 July 2022 will be published and circulated to the parties as soon as possible, and in any event no later than the week commencing 11 July 2022, explaining the basis on which the orders above have been made. 6. The Court notes that the applicant may make an application to set aside or vary these orders. 7. A copy of rules 5.22 and 5.23 of the Federal Court Rules is attached to these orders. ANNEXURE A Federal Court Rules 2011 (Cth) … 5.22 When a party is in default A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 5.23 Orders on default (1) If an applicant is in default, a respondent may apply to the Court for an order that: (a) a step in the proceeding be taken within a specified time; or (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant: (i) immediately; or (ii) on conditions specified in the order. (2) If a respondent is in default, an applicant may apply to the Court for: (a) an order that a step in the proceeding be taken within a specified time; or (b) if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or (c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or (e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order. Note 1: The Court may make any order that the Court considers appropriate in the interests of justice—see rule 1.32. Note 2: An order or judgment under this Division may be set aside or varied. … Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.