Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1414
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1414
File number(s): MLG 446 of 2021 Judgment of: JUDGE FORBES Date of judgment: 3 December 2024 Catchwords: MIGRATION – judicial review – dismissal of application for non-appearance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Regulations 1984 (Cth) cl 820.211, 820.221
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 3 December 2024 Place: Melbourne Applicant: No appearance Solicitor for the Respondents: Mr Mintz; Clayton Utz ORDERS
MLG 446 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASVIR KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.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 Applicant’s application for judicial review filed on 19 February 2019 be dismissed on account of the Applicant’s failure to appear.
2.The First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”.
3.The Second Respondent’s name be amended to “Administrative Review Tribunal”.
4.The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
5.A copy of these orders be served by the First Respondent upon the Applicant
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
In this matter, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the delegate of the Minister to refuse to grant her a Partner temporary (class UK) visa. The Tribunal was not satisfied that the applicant was the spouse of the sponsor, as required by clauses 820.211 and 820.221 of Schedule 2 of the Migration Regulations 1984 (Cth).
By way of an application, filed on 19 February 2019, the applicant seeks judicial review of the Tribunal's decision. She seeks an order that the decision of the Tribunal be quashed. The substantive grounds of the application are twofold. First, the applicant alleges that she had not had a fair hearing at the Tribunal and that there was an error of law made by the Tribunal. Secondly, the applicant contends that the matter was not heard in the right manner and since there was not a fair hearing, she believes there was an error of law.
Directions issued in this proceeding, previously, afforded the applicant an opportunity to file an amended application and any written submissions or evidence in support of the grounds for review.
The applicant has not filed any material in this matter other than her application and an affidavit to which she annexed the reasons of the Administrative Appeal Tribunal. The Minister, who is today represented by Mr Mintz, has filed both an outline of submissions and a court book containing all relevant material for the purposes of today's proceeding.
This matter was originally listed for 8 November 2024. I am informed that the court's migration team notified the parties of that hearing, on 26 September 2024.
On 30 September 2024, Ms Kaur emailed the migration team requesting an adjournment of the 8 November hearing, saying that she would be in India to support her mother going into surgery. My chambers subsequently emailed the parties, on 3 October, asking them to confirm whether a new hearing date of 3 December 2024 would be suitable. Both the Minister and Ms Kaur responded to my chambers that day, indicating that the new hearing date of 3 December 2024 was suitable. Indeed, Ms Kaur replied:
“Yes. All good, thank you.”
The matter was adjourned to this day, accordingly.
On 26 November, my chambers sent a notice of listing to the parties. That notice of listing was sent to the email address previously used by Ms Kaur for correspondence with the court. On 28 November, Mr Mintz, on behalf of the Minister, notified his intended appearance and he appears before me today. Ms Kaur did not respond to the notice of listing.
The time is now 10.39 am. These proceedings were listed to commence at 10.15 am. Mr Mintz appears on behalf of the Minister.
At 10.15 am, there was no appearance on behalf of the applicant. I took the caution of delaying the commencement of the proceedings until 10.30. Again, at 10.30, there was no appearance on behalf of the applicant. I asked my associate to call the matter outside the court. She did so and I was informed that there was no appearance for the applicant.
Mr Mintz, on behalf of the Minister, has asked that the court dismiss the application 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 now provides that if a party is absent from a hearing, the court or a Registrar may do any one of a number of things. Paragraph (c) of the rule provides that where the absent party is an applicant, the court can dismiss the application.
Having regard to the background circumstances that I have just described and being satisfied that the applicant was properly on notice of this hearing, I accede to the Minister's request and I will make order sought.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Forbes. Associate:
Dated: 20 December 2024
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