Kim v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 323
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 323
File number: ADG 105 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 10 April 2024 Catchwords: MIGRATION – Student visa cancellation – decision of the Administrative Appeals Tribunal – matter listed for a final 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: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 10 April 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 105 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANGMIN KIM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 APRIL 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 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).
3.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
4.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 10 April 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 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).
3. The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 Adelaide Registry of this Court on 23 April 2021 (the “application”). That application was accompanied by an affidavit which was affirmed and filed by the applicant on 23 April 2021.
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 Administrative Appeals Tribunal (the “Tribunal”) on 25 March 2021. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) cancelling the applicant’s Student (Class TU) (Subclass 500) visa.
On 28 May 2021, orders were made by Registrar van der Westhuizen of this Court programming the matter to a show cause hearing “on a date to be advised”.
On 29 December 2023, orders were made by this Court vacating some of those orders and programming the matter to a final hearing “on a date to be advised”.
That same day (also on 29 December 2023), my chambers sent a listing notice to the parties (via email) providing them with a copy of those orders and advising them that the matter had been listed for a final hearing before this Court at 2.00pm (ACST) / 12.30pm on 10 April 2024.
On 8 April 2024, the parties were reminded by my chambers of the date and time of the hearing. The parties were also given instructions on how to attend that hearing by video link (using Microsoft Teams).
When the matter came before this Court (on 10 April 2024), there was no appearance by or on behalf of the applicant. Mr Benjamin Mayne (“Mr Mayne”) appeared at the hearing on behalf of the Minister (via video link using Microsoft Teams).
The Court confirmed that it had before it the correspondence between my Chambers and the parties (referenced above). This correspondence was tendered (together) and referenced as Exhibit 1.
The affidavit of Ms Aatika Ismailjee (“Ms Ismailjee”) affirmed and filed on 17 January 2024 (the “first Ismailjee affidavit”) was taken as read and in evidence. The material annexed to the first Ismailjee affidavit indicated that the applicant had departed Australia in March 2022, his visa had ceased and he did not hold a visa which would permit his re-entry into Australia.
The affidavit of service of Ms Ismailjee affirmed on 8 April 2024 and filed in this Court on 9 April 2024 (the “second Ismailjee affidavit”) was also taken as read and in evidence. The material annexed to the 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.
Noting the correspondence contained in the first and second Ismailjee affidavits and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the 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 Minister’s written submissions were detailed and Mr Mayne 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 seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 26 April 2024
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