KC v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1102
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
KC v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1102
File number(s): SYG 1976 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 30 October 2024 Catchwords: MIGRATION – adjournment request refused – where medical evidence in support of adjournment request unsatisfactory – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.214
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 24 October 2024 Place: Parramatta Applicant: No appearance Solicitor for Respondents: Mr A Sharma of HWL Ebsworth ORDERS
SYG 1976 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISHAN KC
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 20 August 2020 is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent’s costs fixed in the sum of $5,600.
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 20 August 2020, 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).
The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa, on the basis that the applicant had not met the Genuine Access to Funds (GAF) criterion in clause 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
As explained in more detail below, this matter was listed for hearing in this Court at 10:15 am on 24 October 2024. On the evening of 23 October 2024, the applicant sent an email to the Court requesting an adjournment. At 9:03 am on 24 October 2024, the Court communicated to the applicant that it refused the adjournment request and the hearing would proceed at 10:15 am. The applicant did not attend the hearing.
This judgment explains the Court’s reasons for refusing the adjournment request and the circumstances of the dismissal of the application on 24 October 2024 pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
BACKGROUND
On 28 September 2017, the applicant, a citizen of Nepal, lodged an application under the Act for a student visa.
On 2 December 2017, a delegate refused to grant the visa on the basis that the applicant failed to meet the GAF requirements of clause 500.214 of Schedule 2.
On 19 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 22 July 2020, the Tribunal wrote to the applicant and invited him to attend a telephone hearing before it on 6 August 2020 at 9:30 am.
The invitation instructed the applicant to provide the following documents to the Tribunal at least seven days before the scheduled telephone hearing was to take place:
(a)a copy of a current Confirmation of Enrolment;
(b)documentation illustrating his past studies in Australia; and
(c)documents that demonstrated his genuine access to funds.
The applicant did not respond to the invitation or provide the above documents to the Tribunal.
On the evening before the telephone hearing was scheduled to occur, the applicant’s representative wrote to the Tribunal stating that the applicant was not available to attend the hearing and requested an adjournment.
At 9:20 am on 6 August 2020, the day of the scheduled hearing, the applicant participated in the “preliminaries” of the hearing, but did not attend the hearing proper which commenced 10 minutes later, at 9:30 am on the same day.
On 6 August 2020, being the day of the hearing, the Tribunal affirmed the decision under review.
PROCEEDINGS IN THIS COURT
Filing of application and listing of matter for hearing
On 20 August 2020, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. The application contained the following unparticularised grounds (verbatim):
1.The Administrative Appeals Tribunal has denied procedural fairness.
2.The Administrative Appeals Tribunal has made irrelevant considerations and failed to make relevant consideration.
Following a period of inactivity, on 24 July 2024 a registrar made procedural orders to prepare the matter for hearing and on 12 September 2024 the Court informed the parties the matter was listed for hearing at 10:15 am on 24 October 2024.
Adjournment request on 23 October 2024 and reasons for refusal
At 6:46 pm on 23 October 2024, the evening before the scheduled hearing, the applicant sent an email to the Court which stated:
Dear Sir/Madam
I refer to the above matter that is listed for hearing tomorrow.
I am an unrepresented applicant and I am unable to attend the hearing tomorrow due to my health condition, injury. Please find the attached medical certificate.
Kindly request the court for another date.
Yours sincerely
Nishan K
The email attached a medical certificate from Dr Paing dated 23 October 2024 which stated:
Mr Nishan K C has right knee injury and will be unfit for work from 23/10/2024 to 27/10/2024 inclusive.
The email also attached a report of an MRI scan of the applicant’s right knee dated 23 October 2024 which stated in part:
Right knee injury during work out with weight lifting and knee bending
The evidence in support of the adjournment request was unsatisfactory for a number of reasons. First, and most significantly, while the evidence indicated the applicant had an injury to his right knee, there was no evidence that the applicant was not fit to attend court on 24 October 2024. Second, the medical documents indicated that on 23 October 2024 the applicant attended a radiology practice on Cross Street in Hurstville for an MRI scan and a general practitioner on Forest Road in Hurstville. The fact the applicant was able to attend these places on 23 October 2024 suggests he was able to attend a court in Parramatta on 24 October 2024. Third, the material in support of the adjournment application did not indicate the date the applicant sustained the right knee injury. The date of injury was relevant to the Court’s assessment of the adjournment request.
In light of the unsatisfactory evidence, I decided to refuse the adjournment request in chambers. As explained below, this decision was communicated to the applicant by email sent at 9:03 am on 24 October 2024.
Two additional matters are as follows.
First, by the time I considered the adjournment request, I had read the materials in preparation for the hearing, including the applicant’s written submission filed on 30 August 2024. The submission appears to have been prepared by a lawyer and is well-written. If the applicant’s case appeared to be strong, I may have been more sympathetic to a late adjournment request. However, the applicant’s case did not appear to be strong.
Second, there is a similarity between the applicant’s last-minute adjournment request to the Tribunal in August 2020 not supported by satisfactory evidence and the applicant’s last-minute adjournment request to the Court on 23 October 2024 also not supported by satisfactory evidence. I did not place weight on the similarity in deciding to refuse the adjournment request.
Hearing and dismissal on 24 October 2024
At 9:03 am on 24 October 2024, the Court sent an email to the applicant, copied to the first respondent’s solicitor, which stated:
Dear Mr Nishan KC
I refer to your email below which has been brought to the attention of Judge Zipser.
Your request for an adjournment is refused. The medical certificate attached to your email does not establish that you are unable to attend the hearing. The hearing will proceed at the scheduled time of 10:15 am (AEDT).
As an alternative to appearing in person, his Honour has granted you permission to appear using the Microsoft Teams link below.
Sincerely…
Following this text was a Microsoft Teams link for the hearing commencing at 10:15 am.
Around 10:00 am, my associate tried to phone the applicant to check he received the email. The call went to a recorded message.
At 10:15 am, the hearing commenced. Mr Sharma appeared for the first respondent. The applicant was not present in the court room or on Microsoft Teams. My associate called the matter outside the court room. Around 10:20 am, my associate again tried to phone the applicant. Again, the call went to a recorded message.
I asked Mr Sharma whether the first respondent wished to proceed with the hearing or have the matter dismissed under rule 13.06 of the Rules. Mr Sharma requested that the matter be dismissed under rule 13.06. By this time, it was 10:40 am. The applicant had not appeared at the hearing in person or by Microsoft Teams. In the above circumstances, I indicated that I would accede to Mr Sharma’s request and make the order in a published judgment.
COSTS
Mr Sharma sought costs fixed in the amount of $5,600. This amount appears reasonable. An order will be made accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 30 October 2024
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