Hussain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 330
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hussain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 330
File number: PEG 224 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 3 May 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for 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: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 3 May 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 224 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: USMAN HUSSAIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
3 MAY 2022
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 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).
3.The applicant pay the first respondent’s costs fixed in the sum of $2,000.
4.Written reasons for judgment to 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 before the Court for a final hearing at 10.00am on 3 May 2022. When the matter was called, there was no appearance by or for 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 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).
3. The applicant pay the first respondent’s costs fixed in the sum of $2,000.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Perth Registry of this Court on 25 October 2021 (the “application”). The application was accompanied by an affidavit, affirmed by the applicant on 18 October 2021 and filed by the applicant on 25 October 2021.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks judicial review of a decision made by the Administrative Appeals Tribunal on 4 October 2021.
On 2 December 2021, orders were made by Registrar van der Westhuizen in this Court, by consent, programming the matter to a final hearing at 10.00am on 3 May 2022.
On 3 May 2022, the matter was called for a final hearing. Ms Scott appeared for the first respondent (the “Minister”). Unfortunately, there was no appearance by or for the applicant.
The Court asked Ms Scott how the Minister wished to proceed in the circumstances.
Ms Scott advised that she sought to have the matter 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $2,000. Ms Scott also tendered correspondence from her office to the applicant in which the Minister advised the applicant that, if he did not appear at the hearing, the Minister would seek for the application to be dismissed and would seek a costs order (Exhibit 1).
Noting the correspondence contained in Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing. The applicant was on notice of the hearing date from 2 December 2021, when orders were made by Registrar van der Westhuizen of this Court (with the applicant’s consent), programming the matter to a final hearing on 3 May 2022. The applicant was also aware that if he did not appear, the Minister would seek dismissal and a costs order.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister as outlined at [2] above.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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