Bharne v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 764
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bharne v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 764
File number(s): MLG 1663 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 16 August 2024 Catchwords: MIGRATION – Student (subclass 500) visa decision of the Administrative Appeals Tribunal – matter listed for final hearing – no appearance by or on behalf of the applicant – application dismissed 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: Migration Act 1958 (Cth) s 65
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: 16 Date of last submission/s: 16 August 2024 Date of hearing: 16 August 2024 Place: Melbourne Applicant: No appearance Solicitor for the First Respondent: R O’Shannessy of Mills Oakley by Microsoft Teams Second Respondent: Submitting appearance ORDERS
MLG 1663 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMEER BHARNE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed on 28 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.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.
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
(Edited from the transcript)JUDGE CUTHBERTSON
INTRODUCTION
This matter was listed for a final hearing before the Court by Microsoft Teams at 10.00am on 16 August 2024. When the matter commenced, there was no appearance by or on behalf of the applicant either online or in person at the Melbourne Registry of this Court.
In the circumstances, the Court made the following orders:
1. The application filed on 28 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.
2. The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.
These reasons explain why the Court dismissed the matter for non-appearance pursuant to r 13.06(1)(c) of the Rules.
BACKGROUND
By an application to show cause filed on 28 May 2019, the applicant sought judicial review of a decision of the second respondent (the Tribunal) made on 10 May 2019. By that decision, the Tribunal affirmed a decision of the delegate to refuse to grant the applicant a Student (Temporary) (Class TU) Student (subclass 500) visa (the visa) under s 65 of the Migration Act 1958 (the Act).
In his originating application filed on 28 May 2019, the applicant provided an email Address for Service. On 3 November 2021, a notice of the first court date was sent to the applicant by way of email.
More recently on 21 March 2024, an email was sent to the parties, including to the applicant’s email address for service, listing the matter for call-over. That email advised that the call-over before a Registrar would occur by telephone. The applicant appeared by telephone at the call-over on 3 April 2024, and procedural orders were made for the timetabling of the matter for hearing.
On 8 April 2024, the applicant emailed the Court Registry referencing the call-over that had occurred on 3 April 2024 and indicated that he was not aware of a hearing date. He requested that he be provided with a hearing date and provided his telephone number. That telephone number was one that was used by my associate on 16 August 2024 to try to contact the applicant when he did not appear.
On 9 April 2024, the applicant was sent an email by the registry to his email address advising that he would receive a sealed copy of the order by the end of the week, and that he would be notified by email when the matter is listed for hearing.
On 1 August 2024, a notice of hearing was sent to the parties, including the applicant at his email address, advising that a final hearing would be conducted on 16 August 2024 at 10.00am. That notice advised that that the hearing would be conducted in person at the Melbourne Registry.
On 14 August 2024, a further email was sent to the parties from my chambers, including to the applicant at his email address, advising that the hearing would proceed via Microsoft Teams. A link to join the Microsoft Teams meeting was provided in that email. No response was received from the applicant to that email.
When the matter came before this Court on 16 August 2024 at 10.00am, the applicant did not join the Microsoft Teams meeting. I stood the matter down to allow enquiries to be made. My associate attempted to contact the applicant by telephone and enquiries were made to see if he had in fact presented in person at the Court building. The applicant did not answer the telephone and he was not located in the Court building.
In those circumstances, counsel for the Minister applied to have the matter dismissed pursuant to r 13.06(1)(c) and sought the Minister’s costs fixed in the sum of $5,000.
Given the correspondence referred to above, I was satisfied that the applicant had been properly notified of the hearing date and time. I was also satisfied that he was properly advised how he could appear at the hearing remotely. In light of the enquiries made, I was also satisfied that the applicant did not appear at the final hearing of the matter.
In respect of the costs order sought on behalf of the Minister, I was satisfied that the amount sought was appropriate in the circumstances, given that effectively the Minister has been required to prepare for this hearing. I note that the amount sought is substantially less than the amount set out in the scale.
CONCLUSION
In the circumstances, I made orders dismissing the matter for non-appearance and awarded costs to the Minister as outlined at [2] above.
I note 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 sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 26 August 2024
0
0
2