FWL24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 941

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).

1. These are proceedings that were commenced by the applicant in this Court on 8 August 2024. The applicant seeks a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth), in respect of a decision of the second respondent, the then Administrative Appeals Tribunal ("Tribunal") dated 12 July 2024 to affirm the decision of a delegate ("delegate") of the first respondent ("Minister") not to grant the applicant a protection (subclass 886) visa ("protection visa"). .
2. On 6 November 2018, the applicant applied to the Tribunal for review of the Minister's decision. On 11 April 2024, the applicant filed an "appointment of representative" form indicating that the applicant would be represented by a registered migration agent. On 16 May 2024, the migration agent, was sent a letter that conveyed to that migration agent that the Tribunal was unable to make a favourable decision on the material that was before it. On 24 June 2024, the applicant, represented by a migration agent, failed to attend the hearing before the Tribunal. On 28 May 2024, the migration agent had earlier sent to the Tribunal an email by the applicant stating:

[The applicant] has instructed me to inform you that he will not be attending the scheduled hearing on 24 June 2024. He requests that the decision be made on the information already provided to the Department of Home Affairs and the tribunal. Please proceed with the assessment and determination of his case using the existing documentation and evidence submitted

1. It is extraordinary that the migration agent in those circumstances conveyed a decision by the applicant to decline to attend the Tribunal hearing in circumstances where the migration agent must have known that the applicant would fail on the material that was currently before the Tribunal. It is not for this Court to regulate the competence of migration agents. However, it is apparent that there is a potential for a very real concern as to the competence of the migration agent representing the applicant in the present case, which the Court notes it has not identified.
2. The matter was listed today for a hearing and the Court was assisted by an interpreter. The applicant did not attend the digital hearing. The Court tried twice to contact the applicant on his mobile number identified on his application commencing these proceedings, filed on 8 August 2014, without success. Ms Rayment, on behalf of the Minister, has moved for the application to be dismissed under r 13.6(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) ("the rules"). The Court is satisfied that the applicant was properly notified - of the digital hearing today. A copy of the communication notifying the applicant to his correct email address was tendered and marked exhibit A.
3. The Court is satisfied that this is an appropriate matter in which to exercise the Court's powers to dismiss the application.
4. It is for these reasons the Court makes the above orders.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.