Kharel v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1165
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kharel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1165
File number(s): MLG 2917 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 6 November 2024 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link– 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: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 6 November 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr C Hibbard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2917 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PUSHPA RAJ KHAREL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
6 NOVEMBER 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 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 $5,000.
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 final hearing (by video link) before the Court at 3.30pm (AEDT) / 12.30pm (AWST) on 6 November 2024. 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 $5,000.
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 which was filed in the Melbourne Registry of this Court on 27 September 2018 (the “application”). That application was accompanied by an affidavit (which was affirmed and filed in this Court on 27 September 2024).
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 4 September 2018. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Student (Class TU) (Subclass 500) visa.
On 27 May 2020, orders were made by Registrar Carlton of the then Federal Circuit Court of Australia programming the matter to a final hearing “on a date to be advised”.
On 1 July 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 (by video link) on 6 November 2024 at 3.00pm (AEDT) / 12.00pm (AWST).
On 1 November 2024, the parties were reminded by my chambers of the date of the hearing and notified that the hearing would instead start at 12.30pm. They were also given instructions about how they could attend that hearing by video link (using Microsoft Teams).
On 4 November 2024, Ms Emma Hubball (“Ms Hubball”) from Mills Oakley Lawyers (solicitor for the Minister) sought clarification in relation to the start time. Later that same day (on 4 November 2024), my chambers confirmed that the hearing start time was 3.30pm (AEDT) / 12.30pm (AWST) (on 6 November 2024). Ms Hubball confirmed receipt of that correspondence by reply email.
As outlined above, when the matter came before this Court (on 6 November 2024), there was no appearance by or on behalf of the applicant.
Mr Christopher Hibbard of counsel (“Mr Hibbard”) appeared at the hearing (by video link) on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). This correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Mr Thomas John Pattinson (affirmed and filed on 5 November 2024 (the “Pattinson affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should he not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Pattinson affidavit was taken as read and in evidence.
The Court asked Mr Hibbard how the Minister wished to proceed.
Mr Hibbard 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. Mr Hibbard also sought the Minister’s costs, fixed in the sum of $5,000.
Noting the correspondence contained in Exhibit 1 and the Pattinson affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also advised of how he could appear at that hearing (by video link) 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 Minister’s written submissions were detailed and Mr Hibbard was prepared to make oral submissions as required by the Court.
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 applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 November 2024
0
0
2