Huq v Minister for Immigration and Border Protection

[2022] FedCFamC2G 1015

Federal Circuit and Family Court of Australia

(DIVISION 2)

Huq v Minister for Immigration and Border Protection [2022] FedCFamC2G 1015   

File number(s):	SYG 3821 of 2017
Judgment of:	JUDGE CAMERON
Date of judgment:	22 November 2022
Catchwords:	PRACTICE & PROCEDURE – Application for dismissal – non-appearance of the applicant.
Legislation:	Migration Regulations 1994 (Cth) cl 572.412
Division:	General
Number of paragraphs:	9
Date of hearing:	22 November 2022
Place:	Sydney
For the Applicant:	No appearance by or on behalf of the applicant
Solicitor for the First Respondent:	Ms S. Roberts (Mills Oakley)

Table of Corrections
7 December 2022	The end certification date “22 November 2022” has been corrected to “5 December 2022”.

ORDERS

SYG 3821 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MD RASHEDUL HUQ

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE CAMERON
DATE OF ORDER:	22 November 2022

THE COURT ORDERS THAT:

1.Pursuant to r.13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application be dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $6,500.00.

3.The name of the first respondent in the Court record be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

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 Cameron

INTRODUCTION

1. The applicant is a citizen of Bangladesh who arrived in Australia on 25 July 2008. On 13 June 2016 he applied to what is now the Department of Home Affairs (“Department”) for a subclass 572 student visa. On 16 August 2016 the application was refused by a delegate of the first respondent (“Minister”). The applicant then applied on 26 August 2016 to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision made on 16 November 2017.

2. The proceeding was listed today for final hearing. The question presently before the Court is whether the application should be dismissed on the Minister’s application by reason of the applicant’s non-attendance.

   LEGISLATION & RULES

3. Clause 572.412 of sch. 2 to the Migration Regulations 1994 (Cth) (“Regulations”), stated relevantly:

   572.412

   If the application is made in Australia, the applicant must be in Australia at the time of grant.

4. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“Rules”) provide relevantly as follows:

   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:

   …

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

   …

   CONSIDERATION

5. The applicant was aware of today’s hearing but has not made an appearance, whether in person or via Microsoft Teams. The applicant has recently corresponded with the Court seeking an adjournment of the case on health grounds.  The Minister refused to consent to the proposed adjournment and the applicant was advised that he could make his adjournment application at the hearing today.  He has not sought to do so, whether in person or with the assistance of anyone else.

6. It is apparent from the affidavit of Ms Meaney, a solicitor in the employ of the solicitor for the Minister, affirmed on 18 October 2022, that Mr Huq is no longer in Australia. It is doubtful whether he could return to Australia in order to prosecute any rehearing before the Tribunal that the Court might order, a matter that is relevant to present considerations given the requirement of former cl.572.412 of sch. 2 to the Regulations, which applies to this case notwithstanding its repeal. There would be no point remitting the matter for reconsideration if the applicant could not comply with the criterion.

7. It should also be recorded that the unparticularised allegation pleaded by the applicant in his initiating application was not, as it stands at present, apparently strong.

   CONCLUSION

8. On balance and having regard to r.17.05 of the Rules, I am persuaded that it is appropriate to dismiss the proceeding under r.13.06(1)(c) of the Rules.

   COSTS

9. As the application is to be dismissed, the Minister has sought an order for his costs. There is nothing in the conduct of this proceeding which suggests that costs should not follow the event as they would in the ordinary course.  The Minister seeks the amount of $6,500 for his costs, which is less than the scale amount which would be applicable in the circumstances to this matter.  I am satisfied that that is a reasonable amount to award the Minister. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       5 December 2022