Dhakal v Minister for Home Affairs

[2021] FedCFamC2G 349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dhakal v Minister for Home Affairs [2021] FedCFamC2G 349

File number:

ADG 280 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

6 December 2021

Catchwords:

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

Legislation:

Migration Act 1958 (Cth)

Migration Regulations1994 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06

Division:

Division 2 General Federal Law

Number of paragraphs:

6

Date of hearing:

6 December 2021

Place:

Darwin

The Applicant:

No appearance by or for the Applicant

Solicitor for the First Respondent:

Mr Retallick of Australian Government Solicitor

The Second Respondent:

Filed a submitting notice, save as to costs

ORDERS

ADG 280 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SURYA DHAKAL

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	6 DECEMBER 2021

THE COURT ORDERS THAT:

1.The Application filed on 19 July 2018 be 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) (“the Rules”).

2.The Applicant pay the First Respondent’s costs in the fixed sum of $5,000.

3.In accordance with rule 17.05 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.

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
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 12 June 2018 to affirm a decision of the Minister’s delegate to refuse the applicant a Student (Temporary) (Class TU) visa.  The reason why the visa application was refused was that the applicant did not then have any proof of enrolment in an educational institution as was required by the Migration Regulations1994 (Cth).

2. On 17 June 2021, the applicant’s former solicitors filed a Notice of Withdrawal (“Notice”), and, annexed to that Notice, a Notice of Intention to Withdraw as Lawyer as is required by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Notice provided a residential address for the applicant and an email address for the applicant.

3. Since the Notice was filed, a number of emails have been sent by the Court to the applicant to the email address appearing in the Notice and, in addition, to another email address that does not appear in the Notice. I note that on 10 November 2021 an email was sent from the Federal Circuit and Family Court of Australia, National Migration Team to the parties advising that the matter was listed today at 2.15 pm (ACDT), in other words, Adelaide time. On 19 November 2021 an amended listing notice was sent to the parties saying that the matter would be heard in an Adelaide courtroom rather than by Microsoft Teams.  On 30 November 2021, my Associate sent an email to the parties saying that the matter would be heard by me in Darwin with the parties to attend the courtroom in Adelaide. On 6 December 2021, that is today, a further email was sent to the parties saying the matter would be heard in courtroom 2 on level 1 of the Court in Adelaide and reminded the parties of the hearing. As far as I am aware, there has been no response to any of those emails from the applicant. 

4. The matter was called on in Adelaide a few minutes ago outside the Court. There was no appearance by the applicant.  The applicant’s absence is, accordingly, unexplained.

5. I propose to dismiss the application pursuant to rule 13.06(1)(c) of the Rules which provide for the application to be dismissed if the applicant is absent.

6. I also will make a costs order in favour of the Minister of $5,000.

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

Associate:

Dated:       10 December 2021