Abhishek v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1056

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Abhishek v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1056

File number(s):	MLG 1558 of 2019
Judgment of:	JUDGE CUTHBERTSON
Date of judgment:	9 October 2024
Catchwords:	MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application 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)
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Division:	Division 2 General Federal Law
Number of paragraphs:	13
Date of last submission/s:	9 October 2024
Date of hearing:	9 October 2024
Place:	Melbourne
The Applicant:	No appearance
Counsel for the First Respondent:	Mr T. Lettenmaier
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	Submitting appearance

ORDERS

MLG 1558 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ABHISHEK

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CUTHBERTSON
DATE OF ORDER:	9 OCTOBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The application filed on 20 May 2019 by the applicant is 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) (Rules).

3.The applicant pay the first respondent's costs of and incidental to these proceedings fixed in the sum of $8,371.30.

AND THE COURT NOTES THAT:

A.The applicant was called outside the courtroom at 10.33am today and there was no response to the call.

B.Pursuant to r 17.05(2)(a) of the Rules, the Court may vary or set aside a judgment or order made in the absence of a party. A copy of the rule will be sent to the applicant with this Order.

C.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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE CUTHBERTSON

INTRODUCTION

1. This matter was listed for a hearing before the Court at 10.15am on 9 October 2024. When the matter commenced, there was no appearance by or on behalf of the applicant. The first respondent’s representative sought dismissal of the application for non-appearance.

2. In the circumstances, the Court made the following orders:

   1. The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

   2. The application filed on 20 May 2019 by the applicant is 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) (Rules).

   3. The applicant pay the first respondent's costs of and incidental to these proceedings fixed in the sum of $8,371.30.

3. These reasons explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules.

   BACKGROUND

4. On 20 May 2019, the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 16 April 2019 (JR application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (Minister) to refuse the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.

5. The JR application was filed on the applicant’s behalf by a solicitor. That solicitor also affirmed an affidavit which was filed in support of the application. On 27 October 2021, a notice of withdrawal of lawyer was filed by the applicant's former solicitors. Shortly following that event, on 29 October 2021, the applicant filed a notice of address for service with this Court.  It provided a residential address, postal address and email address for service.  On 21 December 2022, the applicant filed a further notice of address for service which updated his residential address, postal address and email address.

6. The email address was very similar to his previous email address, with a change of numerals. The previous email address had the numbers "1336" included in the address. The updated email address included the numerals "1990".  That latter email address has been the one used to send various notices from this Court and for the Minister to correspond with the applicant. I also note that the applicant has sent a number of emails to the registry from the most recent email address with the numerals “1990”, inquiring when his matter would be listed for hearing. The dates of that contact were 23 December 2022 and 26 January 2023.

7. On 28 March 2024, the parties were sent a notice of listing of the matter for callover before a registrar of this Court. In the case of the applicant, that notice of listing was sent to his email address for service. The callover occurred on 11 April 2024. The applicant appeared by telephone. Procedural orders were made to ready the matter for final hearing, and the parties were put on notice that the hearing may be listed as soon as mid-May 2024. The notations to the orders included the following:

   A. The applicant lost access to his old email address and so no longer access to the court book. The solicitors for the first respondent will email him another copy and post him a copy one he files an updated notice of address for service.

   I am told the Minister’s solicitors emailed a copy of the Court Book to the applicant on 11 April 2024, though there has been no affidavit of service filed to verify this.

8. On 2 September 2024, the applicant and the Minister were sent a notice of listing to their email address for service. Subsequently, there was some correspondence between the Court and the parties regarding the provision of an audio-visual link to enable the Minister's counsel to appear remotely.

9. I note the applicant sent an email to my associates’ email address, apparently referring to an email he had been sent saying:

   Hi … I got this mail .  I am confused about it

   It is not possible to identify from the applicant’s email what email he is referring.  This email was sent at 7pm on 8 October 2024. The Minister has tendered an email that was sent by Samantha Moxie, one of the solicitors acting on behalf of the Minister, at 8 October 2024 at 9.41pm to the applicant at his email address for service:

   Dear sir, I refer to our telephone call earlier tonight and the below email from the Court.

10. I pause here to note that this email forms part of a chain which includes the 2 September 2024 email from this Court's registry advising of the listing of the matter for final hearing before me today. The email continues:

    Your matter is listed for hearing tomorrow, 9 October 2024, at 10.15AM, in person, at the Federal Circuit and Family Court (Commonwealth Law Courts building, 305 William Street, Melbourne VIC 3001). You are required to attend Court on this occasion.

    If you do not attend on this occasion, the first respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister's legal costs of the proceedings.

    Attached again for your reference are the first respondent's submissions. 

    Those submissions have been filed by the Minister on 20 May 2024.

11. This email satisfies me of two things. First, that the applicant had received a copy of the Minister's submissions and, secondly, that the applicant was on notice of today's hearing and of the need to attend and the consequences of not doing so. The present time is now 10.59am, and the applicant is still not present in Court. I had caused the matter to be called three times outside the body of the Court, and no response. There is no indication that the applicant has attempted to join the hearing remotely via the Microsoft Teams link provided for the benefit of the Minister's counsel. I am satisfied that the applicant was notified of today's hearing by the Court by email to his nominated email address for service. I am further satisfied that the applicant's non-attendance has occurred in circumstances where the applicant was put on notice of the consequences of that failure.

    CONCLUSION

12. In all of the above circumstances, I am prepared to dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules, consequent upon the non-appearance of the applicant. The Minister seeks costs in the sum of $8,371.30, which corresponds with the scale amount for proceedings concluded at a final hearing.

13. I am satisfied that costs should follow the event. I am also satisfied that it is appropriate to make the order sought in the sum requested. This is because the Minister has had to prepare for a final hearing. I do not see any reason to conclude that the failure of the applicant to attend on this occasion has ameliorated in any way the costs incurred by the Minister in resisting the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson.

Associate:

Dated:       9 October 2024