Anjum v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1012
•6 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anjum v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1012
File number: MLG 1211 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 6 November 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Migration Act 1958 (Cth), ss 362B & 476
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 6 November 2023 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1211 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ANJUM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
6 NOVEMBER 2023
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 $5,000.
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 for a final hearing before the Court at 2.00pm (AEDT) / 11.00am (AWST) on 6 November 2023. 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 $5,000.
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 on 4 May 2018 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 30 April 2018 (and filed in this Court on 4 May 2018).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). By that application, the applicant sought review of a Confirmation Decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 10 April 2018. In that decision, the Tribunal confirmed its decision (dated 20 February 2018) to dismiss the applicant’s review application under s 362B(1A)(b) of the Act because the applicant failed to appear at a scheduled hearing before the Tribunal.
On 12 June 2019, orders were made by Registrar Allaway of this Court programming the matter to a final hearing on a date to be advised.
On 17 April 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 6 November 2023.
On 3 November 2023, the parties were reminded of the date and time of the hearing. They were also provided instructions to attend the hearing by video link (using Microsoft Teams).
When the matter came before the Court (on 6 November 2023), there was no appearance by or for the applicant. Ms Kristina Petrovski (“Ms Petrovski”) from Sparke Helmore appeared at the hearing on behalf of the first respondent (the “Minister”) (via video link).
The Court asked Ms Petrovski how the Minister wished to proceed.
Ms Petrovski advised the Court that the Minister sought to have the matter dismissed pursuant to r 13.06(1)(c) of the Rules. She also sought the Minister’s costs, fixed in the sum of $5,000.
In support of that position, Ms Petrovski sought to rely on her affidavit of service affirmed and filed on 23 October 2023 (the “Petrovski affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at a scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs.
The Petrovski affidavit was taken as read and in evidence.
The affidavit of Ms Tareena Martin (affirmed and filed on 24 July 2023) (the “Martin affidavit”) was also taken as read and in evidence. That affidavit annexed information from records held by the Department of Home Affairs which indicated that the applicant was “offshore” (having departed Australia on 8 May 2020).
The Court Book filed on behalf of the Minister in this matter was tendered and referenced as Exhibit 1.
Correspondence from my chambers to the parties (outlined above) was tendered and referenced as Exhibit 2.
Noting the correspondence contained in the Petrovski and Martin affidavits and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also properly advised of how he could appear at that hearing (using Microsoft Teams).
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Petrovski was prepared to make oral submissions as required by the Court.
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 twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 November 2023
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