Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 757
•19 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 757
File number: MLG 402 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 19 August 2024 Catchwords: MIGRATION – student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – current Confirmation of Enrolment not found – no appearance by or on behalf of the applicant – applicant is offshore, does not have a visa and cannot return to Australia – 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 – application dismissed. Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 19 August 2024 Place: Melbourne Counsel for the Applicant: No appearance by or for the Applicant Solicitor for the First Respondent: Ms A Rath, Sparke Helmore Counsel for the Second Respondent: Second Respondent filed a submitting appearance Solicitors for the Second Respondent: Sparke Helmore ORDERS
MLG 402 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANPREET KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
19 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 13 February 2019 is dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.The applicant pay the first respondent’s costs in the sum fixed at $5,000.
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
Judge Gostencnik
The originating application in this proceeding filed on 13 February 2019 seeks judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate made by the then Minister for Home Affairs to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 Visa.
The applicant is a citizen of India, who arrived in Australia on or about 6 April 2015, and applied for a visa on 13 September 2017. Whilst in Australia, the applicant appears to have completed an English language course undertaken between 7 April 2015 and 12 June 2015. The applicant was enrolled in a Master of Information Technology and Master of Business Administration from 20 July 2015 until 13 July 2017, at which time that enrolment appears to have been cancelled, because of non-payment of fees. The applicant's visa application was refused by the delegate on 27 November 2017 because the applicant did not meet the criteria in clause 500.212 of the Migration Regulations 1994.
The delegate found that, although at the time of the applicant's visa application she had held a Confirmation of Enrolment (CoE), that enrolment had been cancelled. And at the time of the delegate's decision the departmental records indicated that the applicant did not then hold a valid or current CoE.
The applicant applied to the Tribunal on 13 December 2017 for a review of the delegate's decision. The Tribunal conducted a hearing on 17 January 2019, at which the applicant appeared, and gave evidence, and presented arguments, in relation to the issues raised by her review application.
At the conclusion of the hearing, the Tribunal affirmed the delegate's decision under review, and delivered oral reasons for its decision. The applicant requested a written statement of decision and reasons from the Tribunal on or about, 25 January 2019, which were provided to her by the Tribunal on 1 February 2019. As already noted, the applicant applied to this Court on 13 February 2019 seeking judicial review of the Tribunal's decision. The applicant attended a callover of the matter by telephone before a Registrar of the Court on 13 April 2024. During the callover, the Registrar made several orders directed to preparing this matter for a hearing. Sealed orders were sent to the applicant by email on 24 April 2024. The sealed orders noted that the parties were on notice that the matter may be listed for hearing shortly after 10 June 2024.
On 17 July 2024, Registrar Downing varied the orders by extending the date by which both the applicant and the respondent would be required to comply with the requirements to file and serve certain materials. The amended orders were again sent to the applicant by email on 17 July 2024. That email opens with the alert to the applicant that the matter will likely proceed to hearing in late August 2024. A notice of listing was sent to the applicant on 6 August 2024 by email. That notice advised the applicant that the matter was listed for a final hearing before a Judge of this Court on Monday 19 August 2024 at 10:00 am, AEST, and that the mode of hearing would be in-person attendance. The emails to which I have referred were sent to the applicant's email address as set out in her originating application.
At the hearing, Ms Rath, appearing for the Minister, relied on an affidavit of Ms Elizabeth Hsu filed on 19 August 2024 in which Ms Hsu deposed to several matters, including that the records held by the Minister’s department indicate, based on the applicant's movement history, that the applicant is currently offshore, no longer in Australia, and does not hold a visa which would permit her re-entry into Australia.
The Minister applied orally for an order dismissing of the application for judicial review for non-attendance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). In the circumstances that I have described, I am satisfied that the applicant was notified properly of the hearing, that she is offshore and having no visa she is not entitled to return. The applicant did not attend the hearing, she did not apply for any adjournment nor has any explanation for the non-attendance been received by the Court. Therefore, I consider that it is appropriate to make an order that the applicant’s judicial review application be dismissed for non-attendance pursuant to r 13.06(1)(c). An order will be made accordingly.
The Minister also seeks his costs fixed in the sum of $5000. Although the matter has today been dismissed for non-attendance, it has been a dismissal at final hearing. And so, effectively, the Minister has done everything that was required of him for the final hearing, apart from making oral submissions at the final hearing. Given the overall history of the matter I am satisfied that it is appropriate to make an order that the applicant pay the Minister's costs, fixed in the sum of $5000.
The name of the first respondent should also be amended to “Minister for Immigration and Multicultural Affairs”.
I note 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 eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 20 August 2024
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