Kaur v Minister for Immigration and Citizenship
[2025] FedCFamC2G 881
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 881
File number: MLG 1452 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 22 May 2025 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – applicant offshore – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c), 17.05(2)(a) & Division 1 of Part 2 in Schedule 2
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 22 May 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr J Hutton Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1452 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOGESWARI KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
22 MAY 2025
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 name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
6.Written reasons for judgment will 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
The matter was listed for a final hearing (by video link) before this Court at 2.00pm (AEST) / 12.00pm (AWST) on 22 May 2025. When the matter was called, there was no appearance by or on behalf of 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 name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
6.Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 above. They explain why the Court dismissed the matter for non-appearance 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”).
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the “FCCA”) on 13 May 2019 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 9 May 2019 (and filed in the then FCCA on 13 May 2019) and an affidavit affirmed by the applicant’s “sponsor” on 9 May 2019 (and filed in the then FCCA on 13 May 2019).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 9 April 2019. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Student (Class TU) (Subclass 500) visa.
On 13 October 2021, orders were made by Registrar van der Westhuizen of this Court programming the matter to a final hearing “on a date to be advised”.
On 2 January 2025, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing (by video link) before this Court at 2.00pm (AEST) / 12.00pm (AWST) on 14 May 2025.
On 8 May 2025, the parties were advised that the final hearing in this matter had been rescheduled and would now take place on 22 May 2025 at 2.00pm (AEST) / 12.00pm (AWST) (by video link).
On 19 May 2025, the parties were reminded by my chambers of the date and time of the hearing. They were also given instructions about how they could attend that hearing by video link (using Microsoft Teams).
When the matter came before this Court (on 22 May 2025), there was no appearance by or on behalf of the applicant. Mr Jeremy Hutton (“Mr Hutton”) from Sparke Helmore appeared at the hearing on behalf of the Minister (by video link using Microsoft Teams).
The Court confirmed that it had before it the correspondence my chambers to the parties (referenced above). This correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Mr Hutton (affirmed and filed on 21 May 2025 (the “first Hutton affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should she not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The first Hutton affidavit was taken as read and in evidence.
The Court finally confirmed that it had before it a further affidavit from Ms Hutton (also affirmed and filed on 21 May 2025 (the “second Hutton affidavit”)). The material annexed to that affidavit indicated that the applicant had departed Australia in November 2020, her visa had ceased and she did not hold a visa which would permit her re-entry into Australia. The second Hutton affidavit was also taken as read and in evidence.
The Court asked Mr Hutton how the Minister wished to proceed.
Mr Hutton advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance (pursuant to r 13.06(1)(c) of the Rules). He also sought the Minister’s costs, fixed in the sum of $5,000.
Noting the correspondence contained in the first and second Hutton affidavits and Exhibit 1, the Court was satisfied that the applicant was no longer residing in Australia and that she had been properly notified of the hearing date and time. She was also properly advised of how she could appear at that hearing (by video link using Microsoft Teams) and the possible cost consequences of failing to attend.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The sum sought was below the amount that the Minister was entitled to seek under the Court’s set scale (set out in Division 1 of Part 2 in Schedule 2 of the Rules). Further, the Minister’s written submissions were detailed and Mr Hutton had appeared at the final hearing (by video link) and was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the application for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 June 2025
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