Imtiaz v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 316
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Imtiaz v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 316
File number: MLG 2345 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 18 February 2025 Catchwords: MIGRATION – student (subclass 500) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a), sch 2, pt 2, div 1, item 3 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 3 February 2025 Date of hearing: 18 February 2025 Place: Melbourne Applicants: No appearance Counsel for the First Respondent: Ms T Weir Solicitors for the First Respondent: HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2345 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ADEEL IMTIAZ
First Applicant
JAWAHIRA ADEEL
Second Applicant
MINSA ADEEL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to Item 10 of Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.
3.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 application filed on 6 July 2020 be dismissed for non-appearance.
4.The first and second applicants pay the first respondent’s costs fixed in the sum of $5,600.00.
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
(Revised from Transcript)Judge Gostencnik
The applicants have applied for judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal), which affirmed a decision of the delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs refusing the first applicant a student visa. The first applicant’s spouse and child are the second and third applicants respectively to the application, and they are members of the first applicant’s family unit, whose applications for visas were contingent on the grant of a visa to the first applicant. Those visa applications were also refused.
The first applicant is a citizen of Pakistan, and he arrived in Australia on 6 April 2011, and since his arrival, he had been granted several student visas and completed various certificates. He applied for the student visa, the subject of this application, on 7 September 2018, to study a Certificate III in Automotive Electrical Technology. The application was made on his behalf by a migration agent who also provided the Department of Home Affairs with various documents and written submissions in support of the student visa application.
On 31 October 2018, a delegate of the Minister refused the visa applications and notified the applicants of the decision and provided a decision record transmitted to their migration agent. The delegate considered that the applicant was not a genuine temporary entrant and that his intended course of study was inconsistent with a temporary entrant. The delegate was not therefore satisfied that the applicant should be granted a visa, and the visa application was refused, as were the contingent family unit visa applications.
The applicants then applied to the Tribunal on 19 November 2018 for a review of the delegate’s decision. The applicants appointed a migration agent as their authorised recipient to receive correspondence from the Tribunal in connection with the review.
On 31 March 2020, by email transmission from the Tribunal to the applicants’ migration agent, the Tribunal invited the applicants to provide some further information in respect of the first applicant and his enrolment in a registered course of study, and addressing the question of whether he was a genuine applicant for entry and stay as a student.
The applicants provided a response on 14 April 2020, and in that correspondence also advised the Tribunal that some of them may not be available on particular dates during the next three months because the first applicant’s family was overseas, and given the COVID pandemic, were unlikely to be able to return to Australia within that period.
By correspondence on 26 May 2020 sent to the applicants’ migration agent, the Tribunal invited the applicants to attend a scheduled hearing on 11 June 2020. Because of the COVID-19 pandemic restrictions, the hearing was then arranged by telephone and the Tribunal requested the applicants notify it if the telephone number specified in the application was not correct or if they preferred a different telephone number. The correspondence also noted that the Tribunal had considered the applicants’ materials in support of the review and was unable, on that material, to make a decision favourable to the applicants.
Consequently, the Tribunal requested the applicants provide some further information in relation to the confirmation of enrolment and other documents. In its correspondence, the Tribunal alerted the applicants to the fact that if they did not attend the scheduled hearing, that the Tribunal was empowered to make a decision on the review without taking any further action to enable them to appear, or it may dismiss the application for review without further considering it. It advised the applicant that if it embarked on the latter course, then he could apply for reinstatement.
The first applicant was sent two SMS hearing reminders on 3 and 10 June 2020 reminding him of the hearing scheduled for 11 June 2020. According to the material in the court book, the Tribunal’s staff were unable to contact the first applicant on the day and at the time of the scheduled hearing, and consequently the applicants were not in attendance.
The Tribunal determined that it would proceed to decide the review without taking any further step to enable the applicants to appear before it, and by its decision on 18 June 2020, the Tribunal affirmed the delegate’s decision, and a notification of that decision and a copy of its statement of decision and reasons were transmitted to the applicants’ migration agent on 19 June 2020, together with some information which set out, amongst other things, the applicants’ right to seek judicial review in this Court and the timeframe within which to do so.
The applicants subsequently filed an application for judicial review, as I indicated earlier, in the Court, and it set out two substantive grounds of review, the first of which is a generalised allegation of jurisdictional error, and the second alleges that the Tribunal failed to observe the principles of natural justice.
Registrar Carlin made some orders on 18 November 2020 setting out a timetable for the parties to file various materials in readiness for the application to be scheduled for hearing. Although the applicant was represented by solicitors, the applicant has not filed any material pursuant to the directions. The matter was subsequently fixed for hearing before me and a notice of the hearing was given to the applicant’s solicitors by the migration team by email on 16 December 2024.
Subsequently, solicitors for the applicant gave notice that they intended to withdraw, and they provided the last known telephone number and email contact address for the applicants. That notice was lodged on 10 February 2025, and on 17 February 2025 the solicitors confirmed and filed the notice of withdrawal as a lawyer.
On 10 February 2025, my associate sent the parties, including the applicant, at the email address specified in the notice of intention to withdraw, a reminder of the scheduled hearing. In the circumstances, I am satisfied that the applicants were properly notified of the scheduled hearing.
The applicants did not attend at the scheduled starting time. There has not been any communication received by my chambers or the registry indicating that the applicants were unable to attend, or that they wished to attend by some other means, or that they sought an adjournment, or if they were running late for the hearing. No communication whatsoever has been received either before the scheduled hearing or since.
At the commencement of the hearing, I adjourned the proceeding for about half an hour to enable my associate to make some inquiries with the applicants as to their whereabouts. My associate placed three telephone calls to the first applicant’s mobile phone without success, and she also sent an email to the first applicant’s email address. The telephone calls were made to the telephone number specified in the notice of withdrawal as lawyer, as was the email dispatched to the email address contained in that notice.
It is in those circumstances that the first respondent seeks an order that 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) (Rules) for non-attendance.
In the circumstances, I am satisfied that the applicants have been given adequate and proper notice of the scheduled hearing. The hearing notice was sent both to the then solicitors on the record and subsequently a reminder to the first applicant’s email address. There is no indication that the email address was non-functioning. There has been no apparent bounce back of an undeliverable message. Despite efforts from my associate to contact the applicants, there has been no success in making contact.
Accordingly, as the applicants have not attended, nor have they sought an adjournment of the application, nor provided any explanation for their non-attendance, I consider that it is appropriate to make the order sought by the first respondent that the judicial review application be dismissed for non-attendance, and an order to that effect will be made.
The first respondent also seeks an order for costs fixed in the sum of $5,600.00 directed only to the first and second applicants, and although the matter will be dismissed today because of non-attendance, the matter is in effect being dismissed at a final hearing. The first respondent, I note, filed written submissions on 3 February 2025 and has otherwise prepared for the full hearing of this matter and has done everything it needs to do to prepare for final hearing, save for making final submissions.
In those circumstances, I consider the amount sought, which is less than the current scale amount for which provision is made for a determination of a matter by final hearing in Pt 2, Div 1, item 3 of Sch 2 of the Rules, is both reasonable and appropriate, and so I will order that the first and second applicants pay the first respondent’s costs fixed in the sum of $5,600.00.
I note, of course, that the applicants may apply to have the application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 6 March 2025
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