Khan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 104
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 104
File number: MLG 1732 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 23 January 2025 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a directions hearing – applicant offshore – no appearance by or on behalf of the applicant – 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 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c), 17.05(2)(a) & Division 1 of Part 2 in Schedule 2
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 23 January 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms J Connolly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1732 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASSAM KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 JANUARY 2025
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 and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $3,300.
6.Written reasons for judgment will 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 directions hearing (by video link) before the Court at 2.00pm (AEDT) / 11.00am (AWST) on 23 January 2025. When the matter was called, there was no appearance by or on behalf of the applicant.
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 and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5. The applicant pay the first respondent’s costs, fixed in the sum of $3,300.
6. Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 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 3 June 2019 (the “application”). That application was accompanied by an affidavit which was sworn by the applicant on 23 May 2019 (and filed in this Court on 3 June 2019).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 29 April 2019. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Student (Class TU) (Subclass 500) visa.
On 24 November 2021, orders were made by Registrar van der Westhuizen of this Court programming the matter to a final hearing “on a date to be advised”.
On 20 May 2022, a Court Book numbering 109 pages was filed on behalf of the Minister (tendered and referenced as Exhibit 2 at the directions hearing of this matter before this Court on 23 January 2025).
On 29 December 2024, 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 3.00pm (AEDT) / 12.00pm (AWST) on 11 February 2025.
On 9 January 2025, my chambers received an email from Ms Jessica Connolly (“Ms Connolly”) from the Australian Government Solicitor (the Minister’s representative). That email relevantly stated:
We refer to the above matter listed for a final hearing before Judge Kendall on 11 February 2025 at 12pm AWST.
The Minister understands the applicant is offshore, having departed Australia on 19 October 2019, after these proceedings were filed on 3 June 2019. We have emailed the applicant, seeking an indication whether the applicant wishes to continue with these proceedings. We have requested that the applicant respond by Tuesday 14 January 2025, being the date the applicant is due to file any submissions under the present timetable.
Our intention is to consider the Minister’s position on whether it might be appropriate to seek that this matter be called on for directions, in light of any response from the applicant.
The applicant remains copied to this email, at his email address for service.
On 16 January 2025, my chambers received a further email from Ms Connolly. That email relevantly stated:
We write to advise that the Minister has yesterday filed an affidavit annexing business records of the Department which demonstrate that the applicant has departed Australia. We await return of the sealed copy.
The Minister observes the applicant has not filed any submissions in accordance with the timetable. In these circumstances, should the Court consider it appropriate, the Minister respectfully requests that the matter be called on for a directions hearing, preferably on or before 22 January 2025, noting that the Minister is otherwise due to file submissions on 28 January 2025.
On 17 January 2025, my chambers notified the parties (via email) that, in light of the correspondence from Ms Connolly (set out above), the matter had been listed for a directions hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 23 January 2025. The parties were also given instructions about how to attend that directions hearing by video link (using Microsoft Teams) and the applicant was put on notice that, in the event that he did not attend the directions hearing (by video link), the Court might dismiss the application for non-appearance pursuant to r 13.06(1)(c) of the Rules.
When the matter came before this Court (on 23 January 2025), there was no appearance by or on behalf of the applicant. Ms Connolly appeared at the directions hearing on behalf of the Minister (via video link using Microsoft Teams).
The Court confirmed that it had before it the correspondence my Chambers to the parties and Ms Connolly’s correspondence to my chambers (referenced above). This correspondence was tendered (together) and referenced as Exhibit 1.
The affidavit of Ms Connolly (affirmed and filed on 15 January 2025 (the “Connolly affidavit”)) was taken as read and in evidence. The material annexed to the Connolly affidavit indicated that the applicant had departed Australia in October 2019, his visa had ceased and he did not hold a visa which would permit his re-entry into Australia.
The Court asked Ms Connolly how the Minister wished to proceed.
Ms Connolly advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance (pursuant to r 13.06(1)(c) of the Rules). Ms Connolly also sought the Minister’s costs, fixed in the sum of $3,300.
Noting the correspondence contained in the Connolly affidavit and Exhibit 1, the Court was satisfied that the applicant was no longer residing in Australia and that he had been properly notified of the directions hearing date and time. He was also properly advised of how he could appear at that hearing (by video link using Microsoft Teams) and the possible cost consequences of failing to attend.
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 amount was below the amount that the Minister was entitled to seek under the Court’s set scale (set out in Division 1 of Part 2 in Schedule 2 of the Rules). Further, the Minister filed multiple documents in this matter and Ms Connolly appeared at the directions hearing before this Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the application for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
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