Khadka v Minister for Immigration and Citizenship
[2025] FedCFamC2G 898
•10 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khadka v Minister for Immigration and Citizenship [2025] FedCFamC2G 898
File number(s): SYG 279 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 10 June 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06, 17.05
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.212, 500.311
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 10 June 2025 Place: Parramatta Solicitor for the Applicants: No appearance Solicitor for the Respondents: Ms J. Schultz of Mills Oakley Lawyers ORDERS
SYG 279 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRAMOD KHADKA
First Applicant
RASHMI SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application 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 applicants pay the first respondent's costs fixed in the amount of $2,353.60.
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 CLEARY
INTRODUCTION
The matter was listed before me on 10 June 2025 for the final hearing of an application for judicial review filed by the applicant and made under s 476 of the Migration Act 1958 (Cth) (Act). In his application the applicant has sought review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 January 2022 which affirmed a decision of a delegate of the first respondent (delegate) refusing to grant the first applicant a Student (Temporary) (Class TU) Subclass 500 visa (student visa).
The applicant did not attend the final hearing of his application in this Court on 10 June 2025. For the reasons that follow, the application is dismissed under 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
On 18 April 2017, the first applicant, a male citizen of Nepal (referred to in this decision as the Applicant), first arrived in Australia on a student visa with the intent to study a Bridging English Program and a Master of International Tourism and Hospitality Management. The second applicant is the first applicant’s wife and relies upon the dependency provisions in cl 500.311 of the Migration Regulations 1994 (Cth) (Regulations).
On 26 August 2019, the first applicant applied for a further student visa that would permit him to finish his Master of Professional Accounting and complete a further Master of Business Administration until mid-2021.
On 16 October 2019, the Department of Home Affairs (Department) invited the first applicant to provide evidence on adverse information, specifically that of his education provided that reported that his grades were poor. The Applicant did not respond to the Department’s invitation.
On 3 February 2020, the first respondent refused to grant the visas on the basis that the Applicant was not found to be a genuine applicant under cl 500.212 of the Regulations.
On 21 February 2020, the applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 16 December 2021, the Tribunal sent the first applicant a letter inviting him to a hearing.
On 17 January 2022, the first applicant provided the Tribunal with written submissions which contained information relating to his courses, future business endeavours and the second applicant.
On 19 January 2022, the first applicant attended the Tribunal hearing and gave evidence with the assistance of a Nepalese interpreter. Oral reasons for affirming the delegate’s decision were given by the Tribunal Member at the hearing.
On 7 March 2022, the Tribunal provided the first applicant with a written statement of reasons for its decision.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 22 February 2022, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 19 January 2022.
On 24 April 2025, the proceedings were docketed to me and set down before me for final hearing on 10 June 2025. On this same day, the registry sent the parties an email stating the date, time and location of the hearing. The registry sent the email to the applicant at his email address for service in the Application.
On 20 May 2020, a Registrar of this Court made an Order for both the Applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The Applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
On 2 June 2025, the Court sent a reminder email to the parties (Exhibit R2), including to the applicant at his email address for service in the Application and notice of Withdrawal of Lawyer, informing them of the date, time and location of the hearing.
On 8 June 2025, the first respondent sent a further reminder email to the applicant, informing him that if he did not appear, the first respondent may seek orders that his application be dismissed with costs (Exhibit R3). The email again informed the applicant of the date, time and location of the hearing.
Prior to the hearing on 10 June 2025, the applicant did not file any written submissions, or any amended application or additional evidence.
Hearing on 10 June 2025
The hearing on 10 June 2025 commenced at the scheduled time of 10:15 am and concluded at around 10:40 am. The matter was called outside the court room prior to the commencement of the hearing. After the commencement of the hearing, the Court adjourned for approximately 15 minutes to allow the applicant time to appear, in the event that the applicant was running late. At around 10:30 am the Court resumed, and the matter was called outside the courtroom again. There was no appearance by the applicant.
Ms Schultz from Mills Oakley Lawyers appeared for the first respondent. At the resumed hearing the first respondent applied for an order under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), dismissing the application on the basis of the applicant’s absence from the hearing on 10 June 2025.
As was outlined above, on 24 April 2025 and again on 2 June and 8 June 2025 , the Applicant was sent emails which notified him of the date, time and location of the hearing. The Court is satisfied that the applicant was aware of the date, time and location of the hearing on 10 June 2025.
For the above reasons, at the hearing on 10 June 2025 the Court indicted that it would accede to the first respondent’s request to dismiss the matter under r 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 10 June 2025 and he is aggrieved that the Application was dismissed in his absence, he may apply to the Court to set aside the dismissal order pursuant to r 17.05 of the Rules. However, if the applicant files an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 10 June 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the Application was dismissed in his absence, and he decides to file an application under r 17.05:
(a)He 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 that there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding; and
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Schultz sought an order that the applicants pay the first respondent’s costs in the amount of $2,353.60. The amount sought is less than the scale amount set out in Schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. The Court will make a costs order for the amount sought.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 10 June 2025
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