Basnet v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2138

FEDERAL CIRCUIT COURT OF AUSTRALIA

Basnet v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2138

File number:

DNG 14 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

26 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse to grant a Student (Temporary) (Class TU) (subclass 500) visa – where the applicant failed to appear – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r 13.03C

Number of paragraphs:

6

Date of hearing:

26 August 2021

Place:

Darwin

The Applicant:

No appearance by or for the Applicant

Solicitor for the First Respondent:

Mr Pasas of Clayton Utz

ORDERS

DNG 14 of 2020

BETWEEN:

SHANKAR DEV BASNET

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	26 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 12 May 2020 is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $7,467.

3.In accordance with r 16.05 of the Rules the applicant has liberty to apply to set aside the orders made today on filing and serving an application and affidavit setting out his reasons for wanting the orders set aside and explaining his non-attendance at court today within 28 days of receipt by him of a sealed copy of these orders.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review filed on 12 May 2020 seeking to quash the decision of the Administrative Appeals Tribunal (the Tribunal) made on 8 May 2020 which affirmed a decision of the Minister’s delegate (the delegate) made on 4 May 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa (the visa).  The essential reason the Tribunal affirmed the delegate’s decision was that the applicant, at the time of the Tribunal’s consideration of the matter, was unable to produce any evidence that he satisfied one of the mandatory requirements for the visa, namely enrolment in an approved course. The Tribunal observed there was no evidence of any confirmation of enrolment.  It appeared that the applicant had not studied since September 2019.  It follows from that recitation that the Tribunal was bound to refuse the application. 

2. The application for judicial review simply asserted that the applicant had been denied procedural fairness and that the Tribunal had taken into account irrelevant consideration and failed to take into account relevant considerations. These allegations were without any particulars. The applicant was always at risk of being dismissed for failing to disclose an appropriate ground of jurisdictional error.

3. The applicant has not appeared today and I am satisfied that his default of appearance is without any explanation or excuse.  On 19 July 2021, an email was sent from the Court to the applicant with a notice of listing for the hearing today, 26 August 2021 at 10:00am (NT Time).  On 19 August 2021 an email was sent outlining, again, that the matter would be heard in this Court today. On that same day there was communication from the Minister’s lawyers saying that they had a different email address. That email was then adopted by the Court and presumably the material was sent again to this email address. 

4. It seems initially information was sent to an email address that is not current for the applicant.  However, Mr Pasas, who appears for the Minister, has also told me from the bar table that his office communicated with the applicant on 19 August 2021. The communication outlined that he needed to appear today and the applicant acknowledged receipt of the relevant email. I have no reason to doubt what Mr Pasas says. There is no doubt that the email address provided by the Minister’s lawyers is the applicant’s current email address.

5. It flows from all of that that the applicant is in default of appearance. The Minister seeks that the application be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) which provides for the dismissal of the application when the absent party is the applicant.

6. The application is dismissed.

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

Associate:

Dated:       7 September 2021