Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 51
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 51
File number: MLG 1225 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 25 January 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicants – 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 (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 25 January 2024 Place: Perth Applicants: No appearance by or on behalf of the applicants Counsel for the First Respondent: Mr C Fitzgerald Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1225 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAMANPREET KAUR
First Applicant
GURPREET SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 JANUARY 2024
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, Citizenship and Multicultural Affairs”.
3.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).
4.The applicants pay the first respondent’s costs, fixed in the sum of $7,467.
5.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 for a final hearing before the Court at 2.00pm (AEDT) / 11.00am (AWST) on 25 January 2024. When the matter was called, there was no appearance by or on behalf of 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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4. The applicants pay the first respondent’s costs, fixed in the sum of $7,467.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 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 this Court on 7 May 2018 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 7 May 2018 (and filed in this Court on 7 May 2018).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal on 24 April 2018.
On 12 June 2019, orders were made by Registrar Allaway of this Court programming the matter to a final hearing on a date to be advised.
On 2 July 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 25 January 2024 (via video link).
On 17 January 2024, the parties were reminded of the date and time of the hearing. They were also provided with instructions in relation to how they could attend that hearing by video link (using Microsoft Teams).
When the matter came before the Court (on 25 January 2024), there was no appearance by or on behalf of the applicants. Mr Christopher Fitzgerald (“Mr Fitzgerald”) of counsel appeared at the hearing on behalf of the first respondent (the “Minister”) (via video link).
The Court asked Mr Fitzgerald how the Minister wished to proceed.
Mr Fitzgerald advised the Court that the Minister sought to have the matter dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules. He also sought the Minister’s costs, fixed in the sum of $7,467.
In support of that position, Mr Fitzgerald sought to rely on the affidavit of Mr Jared Percy Mintz affirmed and filed on 16 January 2024 (the “Mintz affidavit”). The material annexed to that affidavit confirmed service of various documents on the applicants and put them on notice that, should they not appear at a scheduled hearing before the Court, the Minister might seek to have the matter dismissed with costs.
The Mintz affidavit was taken as read and in evidence.
Correspondence from my chambers to the parties (outlined above) was tendered and referenced as Exhibit 1.
The Court Book filed on behalf of the Minister in this matter was tendered and referenced as Exhibit 2.
Noting the correspondence contained in the Mintz affidavit and Exhibit 1, the Court was satisfied that the applicants had been properly notified of the hearing date and time. They were also properly advised of how they could appear at that hearing (via video link using Microsoft Teams).
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 Minister’s written submissions were detailed and Mr Fitzgerald was prepared to make oral submissions as required by the Court.
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.
The Court notes that the applicants can apply to have their 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: 31 January 2024
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