Kataria v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 369
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kataria v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 369
File number: SYG 3605 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 16 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
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 16 May 2022 Place: Perth Applicants: No appearance Counsel for the First Respondent: Mr A Shinnick Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 3605 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP KATARIA
First Applicant
NEHA KATARIA
Second Applicant
RYAAN KATARIA
Third 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:
16 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 $5,900.
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 on 16 May 2022. When the matter was called, there was no appearance by or for the applicants.
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 $5,900.
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 Sydney Registry of this Court on 21 November 2017 (the “application”). The application was accompanied by an affidavit deposed by the first applicant on 11 November 2017 and filed in this Court on 21 November 2017.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 30 October 2017.
On 21 December 2017, orders were made by Registrar Cho in this Court programming the matter to a “callover” on 12 August 2019.
On 2 July 2019, the Court notified the parties (via email) that the matter had been “administratively adjourned to a date to be fixed”.
On 1 November 2022, the parties attended a directions hearing (by telephone) and amended programming orders were made, listing the matter for a final hearing on 25 January 2022.
On 19 November 2021, my chambers notified the parties that the hearing listed on 25 January 2022 was vacated and re-listed for a final hearing at 12.00pm (AEST) / 10.00am (AWST) on 16 May 2022.
On 11 May 2022, my chambers notified the parties of a change to the hearing commencement time, advising that the hearing would now commence at 2.00pm (AEST) / 12.00pm (AWST) on 16 May 2022.
On 13 May 2022, the parties were reminded by my chambers of the date, time and location of the hearing and provided with instructions for attendance at that hearing by video link.
On 16 May 2022, the matter was called for a final hearing. Mr Shinnick appeared for the Minister. Unfortunately, there was no appearance by or for the applicants.
Mr Shinnick took the Court through correspondence from his office to the applicants in which the Minister advised the applicants that, if they did not appear at the hearing, the Minister would seek for the application to 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) (the “Rules”) and that the Minister would seek a costs order.
The correspondence from Mr Shinnick’s office, together with the correspondence from my chambers (dated 11 May 2022 and 13 May 2022), were tendered and referenced as Exhibit 1.
The Court asked Mr Shinnick how the Minister wished to proceed in the circumstances.
Mr Shinnick ultimately sought for the matter to be dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $5,900.
Noting the correspondence outlined above, the Court was satisfied that the applicants had been properly notified of the hearing date and time and of what they needed to do to participate in that hearing. The Court was also satisfied (noting the contents of the written submissions prepared by the Minister in this matter) that the costs order sought was appropriate.
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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2022
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