Hossain v Minster for Immigration and Multicultural Affairs

[2025] FedCFamC2G 1001

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hossain v Minster for Immigration and Multicultural Affairs [2025] FedCFamC2G 1001

File number(s):	SYG 1773 of 2021
Judgment of:	JUDGE ELDERSHAW
Date of judgment:	6 May 2025
Catchwords:	MIGRATION – Non-appearance of the applicant at the final hearing – Where the applicant was properly informed of the hearing – 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:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules of 2021 (Cth), r 13.06, 17.05
Division:	General
Number of paragraphs:	26
Date of hearing:	6 May 2025
Applicant:	No appearance by or on behalf of the applicant
Solicitor for the First Respondent:	Mr L. Dennis (Mills Oakley)
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 1773 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ABDUL KAIWAM MOHAMMED SHOAIEB HOSSAIN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ELDERSHAW
DATE OF ORDER:	6 MAY 2025

THE COURT ORDERS THAT:

1.The application filed on 21 September 2021 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 (Cth).

2.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings, fixed in the amount of $6,100.

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

JUDGE ELDERSHAW

INTRODUCTION

1. The applicant is a citizen of Bangladesh, born on 1 October 1973, who arrived in Australia in 2008. On 15 July 2019 the applicant applied to the Department of Home Affairs (Delegate), as it was then known, for a student (subclass 500) visa, citing a current enrolment in a vocational course of education and training.  On 16 August 2019, that application was refused by a Delegate of the First Respondent (Minister).  On 3 September 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal), as it was then known, for review of the Delegate's decision.  On 26 August 2021, a member of the Tribunal affirmed the decision of the Delegate not to grant the applicant a Student (Temporary) (class TU) visa.

   PROCEEDINGS IN THIS COURT

2. On 21 September 2021, the applicant filed a migration application in this Court seeking judicial review of the Tribunal member's decision. In his application the applicant cited two grounds of review:

   Ground 1

   The Tribunal exercised its discretion unreasonably and refused to adjourn the hearing.

   Particulars

   The applicant has provided a medical report dated 14 August 2021 and the Doctor has provided his medical opinion that the applicant was unfit from work from 20 August 2021 to 27 August 2021. We respectfully submit that unfit for work include attending the hearing. It is submitted that by way of providing the letter, the applicant made a submission to adjourn the hearing. The Tribunal exercised its discretion unreasonably and failed to adjourn the hearing.

   Ground 2

   The Tribunal failed to provide documentary evidence to the applicant and failed to provide sufficient time to respond to the concerns raised under section 359AA.

   Particulars

   The Tribunal advised the applicant that as per PRISM, there is no valid COE but failed to provide a copy of the PRISM to the applicant to confirm. In addition, the Tribunal failed to explain the difference between comment on and Respond and failed to provide sufficient time for the applicant to respond to the concerns raised under Section 359AA.

3. Together with the application, the applicant filed an affidavit on 22 September 2021 dated 17 September 2021 annexing the decision of the Tribunal with no further evidence.  The Minister filed a response on 27 October 2021 seeking the dismissal of the application and costs.

   BACKGROUND

4. On 31 October 2024, the matter came before Registrar Cummings, at which time the applicant appeared by telephone with the assistance of a Bengali interpreter. Amongst other things, directions were made by the Registrar for the filing and service of documents by the applicant and the Minister in readiness for a hearing, the date and time of which was to be advised.

5. On 14 January 2025, the matter was set down for final hearing before me on 28 May 2025 commencing at 11:00am and a notification from my chambers was sent to the applicant and also to the Minister's solicitor.  The notification with respect to the applicant was sent both to the address of 4/67 Railway Street, Rockdale, New South Wales, and by email to [email protected].  In that notification of listing, the registry advised the parties that the event would be held at Courtroom 3C of Level 3 at the Lionel Bowen Building, 97 to 99 Goulburn Street, Sydney.  

6. On 29 January 2025, a notification was sent to the parties, by way of an Order made, identifying that the matter had been listed for final hearing on today's date but at 10:15am.

7. On 12 February 2025, a notification was sent from the Registry to the parties, with the same postal and email address used for the applicant, this time advising that the location of the hearing had changed from the Lionel Bowen Building to Courtroom 13.1 of 80 William Street, Woolloomooloo NSW 2011 (Terrace Tower Building).

8. On 26 April 2025, the applicant, using the email address previously identified as being that of [email protected], the same email address used by the Court to communicate with him for prior listings, emailed the registry and the Minister's solicitors identifying certain issues:

   Dear Sir,

   case number: SYJ1773/2021

   This is Abdul Kaiwam Mohammed Hossain. My date of birth  01.10 .1973 and Passport number - BH0745128. My hearing date is on 06 th of May at Federal Circuit & Family court Division -2 of Australia. I am writing to let you know that I am suffering different kinds of disease and several health issues,  mentally and physically unstable due to those unavoidable problems. At the moment , I don't have work and also I lost my driving licence because of several health problems and lack of concentration on the road. Also my GP has referred me to a psychologist, but I am not getting the schedule for the specialist. I am also suffering  financial hardship .

   I Therefore, requesting you to lend me more time on my hearing  and let me organize myself to recover from the health issues. I am attaching here all the necessary documents that are required to prove my health problems.

   Kind regards.

   Abdul Kaiwam Mohammed Hossain

   please find the attached.

9. On Monday 28 April 2025, the registry officer emailed the Minister and the applicant at that same email address, advising that the matter remained listed for hearing on 6 May 2025 at 10:15am, and that any request for an adjournment may be made on the listing date.  That email advised that the matter was listed for a face-to-face hearing in Courtroom 9.1 on Level 9 of 80 William Street, Woolloomooloo NSW 2011, being the Courtroom in which the hearing took place.

10. On 29 April 2025, a solicitor acting for the Minister, emailed the registry, copying the applicant at the same email address produced above, identifying the Minister's opposition to any request for an adjournment.

11. On 17 April 2025, the Minister filed his outline of submissions. Then on 28 April 2025 at 2:39pm, the Minister caused to be filed, by a solicitor with carriage of the matter, the affidavit of Mr Lei Qian. I have read that affidavit, and I note its contents.

12. Further, an unfiled copy of the Court Book for these proceedings was emailed to the applicant on 9 December 2021 at the email address [email protected] and postal address 4/67 Railway Street, Rockdale.  A sealed copy of the Court Book was served, by way of email, on the applicant at the same email address on 23 December 2021.

13. On 22 April 2025 the Minister's submissions were emailed to the applicant at the same email address.  I note the annexures to that affidavit. For greater abundance of caution, I refer to the application filed on 21 September 2021 by the applicant, which clearly states on the front page of the application an address for service of 4/67 Railway Street, Rockdale, and an email address of the same [email protected].  I am satisfied that the use of that email address and the Rockdale address was appropriate and correct in the circumstances of information provided to the Court by the applicant himself.

14. By going through the chronology this morning in the giving of these reasons, it was apparent that there have been a great number of changes to the time and the location, both as to registry and courtroom itself, of the proceedings today.  That has been an unfortunate incidence of the busy nature of this Court and needing to shift Courtrooms from time to time.  Nevertheless, it has been clear for some number of weeks that the proceedings were to be convened at 80 William Street, Woolloomooloo NSW 2011 (Terrace Tower Building) and more recently in Courtroom 9.1.

15. To overcome the risk of the applicant operating under the misapprehension that the matter remained in Courtroom 13.1, the solicitor for the Minister went upstairs to Level 13, and advised the Court, on the record, that the applicant was not to be found.  Further, upon his request to the Associates of the presiding Judge in Courtroom 13.1, he learned that there had been no inquiries by an applicant looking for the correct place for his proceedings.  I am satisfied that the applicant was not in the registry.

    CONSIDERATION

16. I turn to r 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules of 2021 (Cth) (Rules) which provides:

    13.06   Default of appearance of a party

    (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

    (a)       adjourn the hearing to a specific date or generally;

    (b)       order that there is not to be any hearing, unless:

    (i)        the proceeding is again set down for hearing; or

    (ii) any other steps that the Court or the Registrar directs are taken;

    (c)       if the absent party is an applicant—dismiss the application;

    (d)if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;

    (e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.

    (2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.

17. The legal representative for the Minister asks that I dismiss the application pursuant to r 13.06(1)(c), that is, in the absence of the applicant the application be dismissed.

18. I agree that the application should be dismissed pursuant to r 13.06(1)(c) by reason of the applicant's failure to attend the hearing today when it was called in the following circumstances.

19. Firstly, I am satisfied that the applicant is on notice of today's proceedings, having regard to the multiple, as outlined, notifications from the Court to him of the listing, including the notifications moving the proceedings to the William Street Registry and from Courtroom 13.1 to Courtroom 9.1.  Even if the detail of the change of Courtroom was not observed by the applicant, there is no sign of the applicant on Level 13, as the evidence has identified already.

20. The applicant was, in any event, plainly aware of the listing today in light of his email to the registry last week seeking an adjournment of the same.  The communication to him and, indeed, to the Minister's legal representative as to the disposition of that informal application, or indication of seeking an application, for an adjournment was clear, in that that issue would be dealt with by me at the beginning of the hearing.  I am satisfied that there was no scope within that email to interpret an implied granting of an adjournment and, certainly, no other listing ever offered.

21. The proceedings were listed to commence at 10:15am.  I came onto the bench at about 10:21am. The matter was called three times outside of Court, with no appearance by the applicant. Mindful of the fact that traffic in the Sydney metropolitan area can be challenging, and despite best endeavours, somebody may be running late so I stood the matter down until 11:00am to allow the applicant an opportunity to make his way to Court if he were caught up in traffic or similar.

22. I returned to the bench at a little after 11:00am. There was no appearance by the applicant. Again, the matter was called three times outside of Court with no further appearance, at which time the Minister's solicitor made the application with which I am now dealing.

23. The communication to the applicant has, at all times, been by way of email address and postal address as provided by him and as plainly appearing on the front page of his application.  Court Books and submissions have been served by the Minister to those addresses.

24. Next, I have regard to the entitlement of the applicant pursuant to r 17.05(2)(a) of the Rules to make an application to vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. Whether or not any such application would succeed would depend on the exercise of discretion, and I note that a relevant consideration to such exercise of discretion includes whether there is an acceptable explanation for the applicant's failure to attend the hearing today and the strength of his case on review if the Order dismissing the application were to be set aside.

    CONCLUSION

25. For those reasons I am satisfied that the application should be dismissed pursuant to r 13.06(1)(c) of the Rules.

    COSTS

26. The Minister's legal representative seeks an Order for costs in a sum fixed in the amount of $6,100. I am satisfied that the costs should follow the event. Pursuant to the Federal Circuit and Family Court of Australia Migration Costs Scale as found in the Rules Sch 2 Part 2, a proceeding concluded at a final hearing identifies a scale of costs in the sum of up to $8371.30. The sum sought by the Minister is lower than that, and in those circumstances, I am satisfied it is reasonable.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.

Associate:

Dated:       27 June 2025