Dudhral v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 656
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dudhral v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 656
File number(s): ADG 351 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 7 May 2025 Catchwords: MIGRATION – Medical Treatment 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: 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: 17 Date of last submission/s: 23 April 2025 Date of hearing: 7 May 2025 Place: Adelaide Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Sophie Ward Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 351 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMARVIR SINGH DUDHRAL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed 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).
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
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 GERRARD:
This matter was listed for a final hearing before the Court in person at 10.00 am on 7 May 2025. When the matter commenced, there was no appearance by or on behalf of the applicant, either online or in person.
In the circumstances, the Court made the following orders:
1.The application be dismissed 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).
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
These reasons 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 Adelaide Registry of this Court on 18 November 2021 (the application). That application was accompanied by an affidavit which was deposed by the applicant on 15 November 2021.
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 Administrative Appeals Tribunal (the Tribunal) on 19 October 2021. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the Minister) refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
On 21 February 2025, the applicant appeared via telephone at a callover hearing before Registrar Foster. At that callover hearing, Registrar Foster made orders programming the matter to a “final hearing on a date to be advised”.
On 14 March 2025, the parties were sent a listing notice (via email) advising them that the matter had been listed for a final hearing before this Court at 10.00 am on 7 May 2025. The parties were advised that the hearing would require “in person” attendance at the Court.
When the matter came before the Court, the applicant did not appear in person. Ms Ward appeared in person on behalf of the Minister. My associate made three unsuccessful attempts to contact the applicant via the telephone number in the footer of their application for judicial review. On one of those attempts, my associate left a voicemail message indicating that the matter was presently scheduled for hearing and if the applicant did not appear, the matter may be dismissed for non-appearance. The applicant was given a further ten minutes to appear. The matter was then called three times outside the courtroom but, as outlined above, the applicant did not appear. One further unsuccessful attempt was made to contact the applicant by telephone.
In those circumstances, counsel for the Minister applied to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. Counsel also sought that the applicant pay the Minister’s costs of the proceedings, fixed in the sum of $5,000.
In support of that application, Ms Ward sought to rely on her affidavit (affirmed on 30 April 2025 and filed with the Court on that same day) (the Ward affidavit). The material annexed to that affidavit demonstrated that the applicant was served with the Court Book and the Minister’s submissions.
Ms Ward also tendered two emails from her colleague Dorsa Salehi, which were received and marked as Exhibits 1 and 2 respectively. The first email was to the applicant (copied to Ms Ward) dated 5 May 2025 at 1.27 pm as follows (emphasis in original):
Dear Mr Dudhral
I am writing to remind you that your matter is listed for final hearing before Judge Gerrard on Wednesday, 7 May 2025 at 10:00am ACST (Adelaide time).
The details for attending the hearing are in the Court’s email to you dated 14 March 2025 (reproduced below).
If you do not attend the hearing, we may ask the Court to dismiss your application with an order that you pay the first respondent’s costs.
Please ensure you have a copy of the Court Book and first respondent’s written submissions accessible to you.
Please do not hesitate to contact me if you have any queries about the above.
Regards
Dorsa
The second email was to the Court’s Migration Team (copied to the applicant and to Ms Ward) dated 5 May 2025 at 2.29 pm as follows (emphasis in original):
Dear Migration Team
We confirm that Sophie Ward, AGS (copied in) will be appearing on behalf of the Minister at the hearing on Wednesday 7 May 2025 at 10.00am before Judge Gerrard.
We would be grateful if she could be copied into any correspondence relating to the hearing.
Regards
Dorsa
Noting the correspondence from the Court and the Minister’s lawyers, the Court is satisfied that the applicant had been properly notified of the hearing date and time.
In light of the enquiries made, the Court is satisfied that the applicant did not appear at the final hearing of this matter.
In respect of the costs order sought on behalf of the Minister, the Court is satisfied that the amount sought is appropriate in the circumstances, noting that it is below the scale amount for a proceeding concluded at a final hearing as set out in Schedule 2, Part 2, Division 1 of the Rules. The Minister effectively was required to prepare for a final hearing. The Minister had filed a Court Book and written submissions, and Ms Ward was prepared to make oral submissions.
In the circumstances, the Court made orders to dismiss the matter for non-appearance and award 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 seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 7 May 2025
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