Javed v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 964

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Javed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 964

File number:	MLG 3496 of 2018
Judgment of:	JUDGE FORBES
Date of judgment:	17 September 2024
Catchwords:	MIGRATION – practice and procedure – dismissal for non-appearance
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06, 17.05
Division:	Division 2 General Federal Law
Number of paragraphs:	11
Date of hearing:	17 September 2024
Place:	Melbourne
Applicant:	No appearance
Solicitor for the Respondents:	Mr O’Shannessy; Mills Oakley

ORDERS

MLG 3496 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

UMER JAVED

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	17 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.Pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Applicant’s application for judicial review filed on 20 November 2018 be dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

AND THE COURT NOTES THAT:

A.There was no appearance on behalf of the Applicant at 10.15am, the scheduled hearing commencement time. The hearing was delayed until 10.30am and the Applicant was called outside of the court room. The Applicant did not appear.

B.Pursuant to rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court or a Registrar may, on application, vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.

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
(ex tempore revised from transcript)

JUDGE FORBES

1. The matter before this court this morning is an application by Umer Javed who seeks judicial review of a decision made by the Administrative Appeals Tribunal on 22 October 2018. In that decision the Tribunal refused to grant the applicant a student visa. By his application to the court, the applicant seeks an order that the Tribunal's decision be quashed and other relief. The applicant has identified four grounds of review.

2. The application which was filed on 20 November 2018 together with an affidavit each identified an email contact address for the applicant of [redacted].

3. Subsequent to the filing of the application, various orders have been made by the court. First on 17 September 2020, an order which on its face appears to have been made by consent of the parties provided for trial preparation steps including the filing of a court book and for the applicant to file any amended application, any supplementary court book or written submissions 28 days prior to the hearing.

4. On 1 February this year, a further order was made by Registrar Carney providing that the application be listed for final hearing on a date to be fixed. I note on that occasion, the applicant appeared in person by telephone with the assistance of an Urdu interpreter. A formal notice of listing was subsequently sent by the court's migration team on 25 July 2024 to the email address identified in the application and supporting affidavit.

5. I am informed by my associate, although this may not have been made known to the Minister, that on 26 July an inquiry was made by the applicant to the court's migration team asking how he could withdraw his application. He was directed to submit a notice of discontinuance. Notwithstanding that communication, no notice of discontinuance has been filed. 

6. On 10 September 2024, my chambers sent a notice of listing notifying the applicant of today's hearing date. Again, that notice of listing was sent to [redacted].

7. At the hearing this morning, Mr O'Shannessy appears on behalf of the Minister. There is no appearance on behalf of the applicant. The hearing was scheduled to commence at 10.15am and, out of an abundance of caution, I delayed the commencement of the hearing until 10.30am. 

8. When the hearing recommenced at 10.35am this morning, there was still no appearance on behalf of the applicant. I directed my associate to call the applicant in the vicinity of the court, and after that was done, I was informed that there was no appearance by the applicant.

9. I have been informed by Mr O'Shannessy, on behalf of the Minister, that attempts were made to contact the applicant by telephone this morning using the phone number that the applicant cited as his contact telephone number in his application before the Tribunal, and again, in the proceeding before this court.

10. The orders made by the court on 1 February this year include a notation confirming that the applicant had received a copy of the court book. Mr O'Shannessy also confirmed this morning that an electronic copy of the court book had been sent to the applicant at the [redacted] email address on 12 September this year. Mr O'Shannessy also informs me that a copy of the Minister's outline of submissions has also been sent by email to the applicant.

11. In all the circumstances, I am satisfied that the applicant has been on notice of this hearing and has been afforded an opportunity to attend. Mr O'Shannessy, on behalf of the Minister, seeks an order that the application be dismissed for want of 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). That rule provides that if the party to a proceeding is absent from a hearing, the court may do any one of a number of things, including to dismiss the application where the absent party is an applicant. I am satisfied that this is a proper occasion on which the court should dismiss the application for the reasons I have already given.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of Judge Forbes.

Associate:

Dated:       7 October 2024