Lu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 669
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 669
File number: PEG 260 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 25 July 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – 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
Migration Regulations 1994 (Cth), cll 500.211 & 500.217 in Schedule 2
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: 18 Date of hearing: 25 July 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
PEG 260 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LO-JUNG LU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.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).
2.The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3.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 1.00pm on 25 July 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.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).
2. The applicant pay the first respondent’s costs, fixed in the sum of $6,500.
3. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 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 Perth Registry of this Court on 14 November 2023 (the “application”). That application was accompanied by an affidavit which was deposed by the applicant on 13 November 2023 (and filed in this Court on 14 November 2023).
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 13 October 2023. In that decision, the Tribunal set aside a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Student (Class TU) (Subclass 500) visa (the “visa”) because the applicant did not satisfy Public Interest Criterion 4020 for the purposes of cl 500.217(1) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). The Tribunal substituted that decision with a decision refusing to grant the applicant the visa because he did not meet the requirements of cl 500.211(a) in Schedule 2 of the Regulations.
On 7 February 2024, orders were made by Registrar Downing of this Court programming the matter to a “final hearing on a date to be advised”.
On 6 March 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 11.00am on 31 May 2024.
On 24 May 2024, my chambers advised the parties that the hearing listed on 31 May 2024 had been vacated and the matter had been re-listed for a final hearing at 1.00pm on 25 July 2024.
On 22 July 2024, the parties were reminded by my chambers of the date and time of the hearing. They were also provided instructions for an “in person” attendance at the Perth Registry of the Court.
When the matter came before this Court (on 25 July 2024), there was no appearance by or on behalf of the applicant. The matter was called outside the court room three times, however, there was still no appearance by or on behalf of the applicant. Mr Benjamin Mayne (“Mr Mayne”) appeared at the hearing on behalf of the Minister.
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 Court also confirmed that it had before it an affidavit of service of Ms Aatika Ismailjee affirmed and filed on 22 May 2024 (the “Ismailjee affidavit”). 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. The Ismailjee affidavit was taken as read and in evidence.
The Court asked Mr Mayne how the Minister wished to proceed in the circumstances.
Mr Mayne 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 and sought the Minister’s costs, fixed in the sum of $6,500.
Noting the correspondence contained in Exhibit 1 and the Ismailjee affidavit, 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 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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 July 2024
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