Khaling v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 420
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 420
File number: MLG 2146 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 7 May 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – 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: Migration Act 1958 (Cth), s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 7 May 2024 Place: Perth Applicants: No appearance by or on behalf of the applicants Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2146 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURAJ RAI KHALING
First Applicant
RIYA RAI
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:
7 MAY 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 $4,189.38.
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 before the Court for a hearing of an application for an extension of time at 3.30pm (AEST) / 1.30pm (AWST) on 7 May 2024. When the matter was called, there was no appearance by or on behalf 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 $4,189.38.
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.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 16 September 2022 (the “application”). The application was accompanied by an affidavit deposed by the first applicant (and filed in this Court on 16 September 2022).
The application seeks review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 9 August 2022. As per s 477 of the Migration Act 1958 (Cth), the application should have been filed 35 days from the date of the Tribunal’s decision (that is, by 13 September 2022). The application was filed three days outside of the requisite time period.
On 7 December 2022, orders were made by Registrar van der Westhuizen of this Court programming the matter to a “hearing of the application for an extension of time on a date to be advised”.
On 29 December 2023, my chambers notified the parties (by email) that the matter had been listed for a hearing of the application for an extension of time (by video link) at 2.00pm (AEST) / 12.00pm (AWST) on 7 May 2024.
On 3 May 2024, the parties were reminded by my chambers 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).
On 6 May 2024, the parties were advised (by email) that the hearing start time had changed and that the matter would instead commence at 3.30pm (AEST) / 1.30pm (AWST) on 7 May 2024. The parties were also advised that the remainder of the hearing arrangements remained unchanged.
As outlined above, when the matter came before this Court (at 1.38pm (AWST) on 7 May 2024), there was no appearance by or on behalf of the applicants. Ms Kristina Petrovski (“Ms Petrovski”) from Sparke Helmore appeared (by video link) at the hearing of the extension of time application on behalf of the first respondent (the “Minister”).
The Court confirmed that it had before it correspondence from my chambers to the parties (as set out above). That correspondence (which included notice from my chambers as to the delayed hearing start time) was tendered and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Ms Amron Rath (affirmed and filed on 17 April 2024 (the “Rath 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, the Minister may seek to have the matter dismissed with costs. The Rath affidavit was taken as read and in evidence.
The Court asked Ms Petrovski how the Minister wished to proceed in the circumstances.
Ms Petrovski advised the Court that the Minister sought to have the matter dismissed on the basis of the applicants’ non-appearance, pursuant to r 13.06(1)(c) of the Rules. She also sought the Minister’s costs, fixed in the sum of $4,189.38.
Noting the correspondence contained in Exhibit 1 and the Rath affidavit, the Court was satisfied that the applicants had been properly notified of the hearing date and time. They were also advised of how they could appear at that hearing (via video link using Microsoft Teams) and of the possible costs consequences should they not appear.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Petrovski was prepared to make oral submissions, as required, in relation to the application for an extension of time.
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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 8 May 2024
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