Kaur v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1403
•27 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1403
File number(s): SYG 399 of 2024 Judgment of: JUDGE ZIPSER Date of judgment: 27 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant absent from Court hearing – dismissal for non-appearance Legislation: Migration Act 1958 (Cth) ss 65, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 26 August 2025 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Ms J Schultz (Mills Oakley) ORDERS
SYG 399 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LOVEJOT KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is 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).
2.The applicant pay the first respondent’s costs in the sum of $6,100.
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 ZIPSER
INTRODUCTION
On 11 March 2024, the applicant filed an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 February 2024. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is 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).
FACTUAL BACKGROUND
In 2019, the applicant, a citizen of India, arrived in Australia as the holder of a visitor visa.
On 31 January 2021, the applicant applied for a subclass 500 student visa on the basis of her enrolment in a Diploma of Leadership and Management and a Certificate IV in Commercial Cookery at an educational institution in Australia.
On 19 March 2022, a delegate of the first respondent refused to grant the applicant the visa on the basis that she did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 23 March 2022, the applicant applied to the Tribunal for review of the delegate’s decision.
On 4 August 2023, the applicant appeared at a hearing before the Tribunal by telephone to give evidence and present arguments, assisted by her representative.
On 12 February 2024, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and therefore the applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Regulations.
PROCEEDING IN THIS COURT
Judicial review application and steps up to hearing on 26 August 2025
On 11 March 2024, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The application contained the following grounds (as written):
1. The Tribunal made an error of law and jurisdiction in affirming the decision under review.
2. The Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction by failing to address cl 500.212 of schedule 2 of Migration Act 1958. The delegate believed that I did not meet the criterion of schedule 2 of subclass 500. However, I met the criteria under the cl500.212 and provided evidence for the same.
3. The Tribunal made an error in judgement by failing to consider the significant difference between the economies of India and Australia and how still with the lower income in India, one can still support a healthy life style in the country.
4. The Tribunal made an error in applying the Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student Guardian visa applications’, made under s499 of the Act.
5. In paragraph 42 the tribunal failed to consider my statements and oral evidence.
6. In paragraph 32 the tribunal made a false assumption that my husband has significant assets in Australia.
The applicant recorded in the application her email address for service (Applicant’s Email Address) and contact phone number (Applicant’s Phone Number).
On 20 September 2024, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application, any affidavit evidence and a written submission.
On 27 May 2025, there was a callover before a registrar of the Court at which the applicant appeared by telephone. According to a notation on the Court’s orders, the applicant “confirmed that their contact details as set out in their application for judicial review remain current”.
On 10 July 2025, the registry of the Court sent an email to the parties, including to the applicant at the Applicant’s Email Address, stating the matter was listed for hearing on 26 August 2025. The email included the time and place of the hearing.
On 12 August 2025, the first respondent filed, and served on the applicant, a written submission. The first respondent’s covering email to the applicant informed her that if she did not attend the hearing on 26 August 2025 “the first respondent may seek orders that your application be dismissed with costs”.
On 19 August 2025, my associate sent an email to the parties, including to the applicant at the Applicant’s Email Address, reminding them of the date, time and place of the hearing.
The applicant did not file a written submission or any further documents prior to the hearing.
Hearing on 26 August 2025
The hearing on 26 August 2025 commenced at 10:20 am and concluded shortly after 10:30 am. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 10:15 am my associate phoned the applicant on the Applicant’s Phone Number. The applicant answered and stated that she would be unable to attend the hearing as she was “pregnant and on bed rest”. The applicant had not previously communicated to the Court:
(a)that she did not plan to attend the hearing; or
(b)a request to adjourn the hearing.
At the hearing, Jessica Schultz from Mills Oakley appeared for the first respondent. She requested that the application be dismissed under r 13.06(1)(c) of the Rules.
Based on the materials referred to above, I am satisfied the applicant was aware of the date, time and place of the hearing on 26 August 2025. I agreed to Ms Schultz’s request to dismiss the application under r 13.06(1)(c) of the Rules.
Re-instatement
If an event prevented the applicant from attending the hearing on 26 August 2025 and she is aggrieved that the application was dismissed in her absence, pursuant to r 17.05 of the Rules, she may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicant files and serves an application under r 17.05, she should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented her from attending the hearing on 26 August 2025. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether her conduct involves an abuse by the applicant of the process of the Court.
If the applicant is genuinely aggrieved that the application was dismissed in her absence and she files an application under r 17.05:
(a)She should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.
(b)The Court will endeavour to list the re-instatement application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Schultz sought an order that the applicant pay the first respondent’s costs in the sum of $6,100 which was less than the first respondent’s solicitor/client costs and less than the scale amount of $8,371.30. I consider this amount is reasonable. I will make the order.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 August 2025
1
0
3