Dias v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 186
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dias v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 186
File number: MLG 1639 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 14 February 2025 Catchwords: MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing (by video link) – 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 14 February 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms C Doyle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1639 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATHAUDA ARACHCHIGE ISURU KITHMAL DIAS
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
14 FEBRUARY 2025
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 and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $4,962.50.
6.Written reasons for judgment will 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 (by video link) before the Court at 3.00pm (AEDT) / 12.00pm (AWST) on 14 February 2025. 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 and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $4,962.50.
6.Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 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 which was filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the “FCCA”) on 27 May 2019 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant and filed in the FCCA on 27 May 2019.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 2 May 2019. In that decision, the Tribunal dismissed the applicant’s application for review of a decision made by a delegate of the first respondent (the “Minister”) cancelling the applicant’s Student (Class TU) (Higher Education Sector) (Subclass 573) visa. The Tribunal did so because the applicant failed to appear at a scheduled hearing before it.
On 10 November 2021, orders were made by Registrar Carney of this Court programming the matter to a “final hearing on a date to be fixed”.
On 29 December 2024, my chambers sent a listing notice to the parties (by email) advising them that the matter had been listed for a final hearing before this Court (by video link) on 14 February 2025 at 3.00pm (AEDT) / 12.00pm (AWST).
On 7 February 2025, the parties were reminded by my chambers of the date and time of the hearing. They were also given instructions about how they could attend that hearing by video link (using Microsoft Teams).
As outlined above, when the matter came before this Court (on 14 February 2025), there was no appearance by or on behalf of the applicant.
Ms Chelsea Doyle (“Ms Doyle”) from the Australian Government Solicitor (“AGS”) appeared at the hearing (by video link) on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). That correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had received email correspondence received from Ms Doyle that same day (being on 14 February 2025). That email attached correspondence from AGS to the applicant confirming service of various documents on him. That correspondence was tendered (together) and referenced as Exhibit 2.
The Court asked Ms Doyle how the Minister wished to proceed.
Ms Doyle advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules. Ms Doyle also sought the Minister’s costs, fixed in the sum of $4,962.50.
Noting the correspondence contained in Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (by video link).
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 Doyle was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the application 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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2025
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