Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 931
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 931
File number: PEG 87 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 16 October 2023 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: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.01(1), 13.01(2), 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 16 October 2023 Place: Perth Applicants: No appearance by or on behalf of the applicants Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 87 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMEENA KHAN
First Applicant
SYED SHAREEFUDDIN KHAN
Second Applicant
UMAIZA SHAREEF
Third Applicant
AMRAH SHAREEF
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.Counsel for the first respondent 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 first and second applicants pay the first respondent’s costs, fixed in the sum of $5,859.80.
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 12.30pm on 16 October 2023. 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.Counsel for the first respondent 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 first and second applicants pay the first respondent’s costs, fixed in the sum of $5,859.80.
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 Perth Registry of this Court on 2 May 2022 (the “application”). That application was accompanied by an affidavit which was sworn by the first applicant on 30 April 2022 (and filed in this Court on 2 May 2022).
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 (the “Tribunal”) on 29 March 2022. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicants Student (Class TU) (Subclass 500) visas.
On 29 July 2022, 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 2 September 2022, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for hearing before this Court at 11.00am on 18 April 2023.
On 3 April 2023, the parties were notified (via email) that the hearing above (on 18 April 2023) had been vacated and the matter had been re-listed for hearing at 11.00am on 4 August 2023.
On 3 July 2023, the parties were contacted (by email) and notified that hearing had been vacated and re-listed to 28 July 2023 at 11.00am.
On 7 July 2023, the first applicant contacted my Chambers and requested that the hearing (listed on 28 July 2023) be postponed. The first applicant’s correspondence detailed a diagnosed medical condition and explained that she was in the process of being prescribed various medications in that regard. The first applicant explained that she was “not in [her] best form to represent [herself]” and asked the court to “grant another date” where she could properly represent her case. Attached to her email correspondence was a medical certificate.
On 11 July 2023, my chambers sought the Minister’s position in relation to the first applicant’s adjournment request.
On 13 July 2023, Ms Madisen Scott (“Ms Scott”) wrote to my chambers (by email) and advised that the Minister opposed the adjournment request for medical reasons. Ms Scott advised, however, that the Minister would not oppose a short adjournment request for another reason. Relevantly, Ms Scott advised as follows:
However, the Minister acknowledges that the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 may be relevant to this matter. The Minister’s submissions do not address Sandor, and the Minister proposes to file updated submissions by 21 July 2023. Should his Honour consider that the applicants require additional time to consider those submissions, the Minister would not oppose a short adjournment of the matter (for a period of up to 2 months) so that the applicants are able to obtain legal advice and assistance should they wish to do so.
On 17 July 2023, the parties were notified that the hearing in this matter had been adjourned “to allow the applicants sufficient time to review the further submissions (once filed by the Minister) and to file any submissions in reply”. The parties were advised that the matter had been re-listed at 11.00am on 7 September 2023.
On 29 August 2023, Ms Scott contacted my Chambers again to seek leave for Mr Greg Johnson (“Mr Johnson”), counsel for the Minister, to appear at the hearing (on 7 September 2023) via Microsoft Teams (noting that Mr Johnson is based in Sydney).
Later that same day (also on 29 August 2023), my Chambers confirmed that the Court was content for Mr Johnson to appear at the hearing of the matter via Microsoft Teams. My Chambers also raised the following concern with Ms Scott:
His Honour notes that the Minister had previously foreshadowed filing further submissions in this matter addressing the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434. Those submissions were only filed this afternoon. In the circumstances, His Honour proposes to adjourn the matter to 10 October 2023 at 12.30pm to ensure that the applicant has sufficient time to review the Minister’s submissions. His Honour requests that you advise if Mr Johnson is available at that time and, if not, if he has any availability in the two weeks that follow.
Following receipt of Mr Johnson’s available dates, the parties were notified (on 31 August 2023) that the matter had been re-listed and the hearing would now take place at 12.30pm on 16 October 2023.
The first applicant acknowledged receipt of the new hearing date by email on 1 September 2023.
On 13 October 2023, the parties were reminded of the date, time and location of the hearing. They were also provided with instructions for attendance at that hearing (by Microsoft Teams for Mr Johnson and an “in person” attendance at the Court for the applicants).
At 8.56am on the morning of the hearing (being on 16 October 2023), the first applicant sent an email to my Chambers. The subject line of that email read “Request to discontinue”. The email correspondence relevantly provided as follows:
This is requesting to excuse my attendance at court and thereby dismiss the case.
As my child is preparing for WACE exams, the discussion of even the court is causing anxiety and traumatising them. They are unable to understand and I cannot add further to these meltdowns.
Apologies kindly excuse me for the hearing today.
Judgement from a respected judge is upheld.
At 10.48am, my Chambers responded to the first applicant’s request as follows:
As the application before this Court relates to yourself and your family, His Honour Judge Kendall will need to discuss any discontinuance with both you and your husband. Given that the hearing is scheduled at 12.30pm this afternoon, His Honour requests that both you and your husband attend the hearing so that he can discuss your request. His Honour will then consider making any necessary orders to discontinue the proceeding.
Noting your concerns below, His Honour advises that you can attend by video link. Information on how to attend via video link is set out below.
In the event that you do not attend the hearing today, the matter may be dismissed in your absence and there may be an adverse costs order made against you.
The applicants (through Ms Khan – the first applicant) were provided with the relevant Microsoft Teams link to appear at the hearing via video link.
When the matter came before the Court (on 16 October 2023), there was no appearance by or on behalf of the applicants. Mr Johnson appeared at the hearing on behalf of the Minister via video link using Microsoft Teams. The matter was called three times but, as outlined above, the applicants did not appear in person in the court room (or via video link).
The Court confirmed that it had before it the correspondence between my Chambers and the parties (referenced above), which was tendered (together) and referenced as Exhibit 1.
The affidavit of service of Ms Scott affirmed on 9 October 2023 and filed in this Court on 10 October 2023 (the “Scott affidavit”) was also taken as read and in evidence. The material annexed to the affidavit confirmed service of various documents on the applicants and put the applicants on notice that, should they not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs.
The Court considered the first applicant’s email correspondence (sent on the morning of the hearing with the subject line “Request to discontinue”).
The Court notes that a party may discontinue an application by filing a notice of discontinuance in accordance with the approved form: r 13.01(1) of the Rules. Any such notice may only be filed with the leave of the Court (or a Registrar) if filed within 14 days of a final hearing date: r 13.01(2) of the Rules. That did not occur here.
The Court also notes, importantly, that the email correspondence was only from the first applicant. There was no correspondence from the second applicant and no confirmation that he also wanted to discontinue the proceedings.
In circumstances where the applicants were not before the Court and the agreement of both adult applicants to discontinue the proceeding was not apparent, the Court determined that it would be inappropriate to discontinue the proceedings.
The Court asked Mr Johnson how the Minister wished to proceed.
Mr Johnson 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 and also sought the Minister’s costs, fixed in the sum of $5,859.80.
Noting the correspondence contained in the Scott 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 (including being provided with the option of appearing in person or via video link using Microsoft Teams).
Whilst the first applicant had sought to have the matter discontinued, the Court considered it more appropriate to dismiss the proceeding for non-appearance. The Court did so, noting that, as outlined above, the Court did not have confirmation that the second applicant agreed to the proceeding being discontinued.
The Court also notes that, following the dismissal of the matter for non-appearance (pursuant to r 13.06(1)(c) of the Rules), the applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
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 sought is less than the scale amount that the Minister is entitled to when a proceeding is concluded at a final hearing and is, in fact, equal to the amount the Minister is entitled to if a proceeding is discontinued less than 15 days before the final hearing.
On that basis, the Court was satisfied that the applicants were not disadvantaged financially by the matter being dismissed (rather than being discontinued).
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.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 October 2023
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