Manzoor v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 110
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manzoor v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 110
File number(s): SYG 3031 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 3 February 2025 Catchwords: MIGRATION – Judicial review – decision not to grant a Student (Temporary) (Class TU) visa – dismissal for non-appearance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) r 13.06 Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 3 February 2025 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Mr A Sharma (HWL Ebsworth) Solicitor for the Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 3031 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADEEL MANZOOR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application is 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 amount of $5,600.
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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 27 November 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant’s Student (Temporary) (class TU) (subclass 500) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicant did not appear at the hearing listed before me today. For that reason, the Minister made an application that the proceedings 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) (Rules). For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia on 16 July 2013, as the holder of a student visa. The visa was granted on 31 June 2013 and expired on 31 January 2019. On 31 January 2019, the applicant lodged a valid application for the visa (Court Book (CB) 1).
On 19 March 2019, a delegate of the Minister invited the applicant to comment on information. That information related to PRISMS records that showed the applicant did not have an approved Confirmation-of-Enrolment (CoE) in any registered course, as required by cl 500.211(a) of the Migration Regulations 1994 (Cth) (Regulations) (CB 47).
In response to the delegate’s invitation, the applicant provided the Department, medical reports and an undated statement. In the undated statement, the applicant outlined his education history in brief and stated during 2016 -2018 he became aware that his father had cancer. As a result of this, the applicant stated that he was "emotionally and mentally disturbing (sic)” and his studies remained “disturbing (sic) during this period”. The applicant stated the above reasons explained why the diploma course undertaken in 2016 with a completion time of 1 year was protracted (CB 55 to 56).
On 17 May 2019, a delegate of the Minister refused to grant the applicant a visa. The delegate was not satisfied that the applicant satisfied clause 500.212 (a). The delegate found the applicant was not a genuine temporary entrant (CB 67).
On 5 June 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 73).
On 30 April 2020, the Tribunal invited the applicant to provide further information regarding the requirements that he be both enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 79).
On 14 May 2020, the applicant’s migration agent responded to this request by completing the relevant form and attaching various documents pertaining to the applicant’s tertiary studies (CB 86).
On 24 November 2020, the applicant received a hearing invitation from the Tribunal (CB 125).
On 27 November 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant appeared without the assistance of an interpreter (CB 139).
On the same day of the hearing 27 November 2020, the Tribunal gave an oral decision affirming the delegate's decision under review. The Tribunal hand delivered to the applicant, a letter regarding the oral decision on the same day (CB 143).
The Tribunal was not satisfied the applicant was a genuine student for entry and stay temporarily as a student, and therefore could not meet clause 500.212(a) of the Regulation. The Tribunal noted the applicant had some personal ties to Pakistan being that his mother and siblings reside there, aside from this it found he had no other real incentive to return to Pakistan (Supplementary Court Book (SCB) [58] to [59]).
RELEVANT LAW
Rule 13.06(1)(c) of the Rules provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…
PROCEDURAL HISTORY
On 4 March 2021, Registrar Van Der Westhuizen issued standard timetabling orders in this matter for a hearing date to be advised to the parties at a future date. At the Callover on 24 July 2024 both parties appeared by telephone including the applicant, without the assistance of the interpreter. Registrar Foster made further timetabling orders including that the applicant on or before 7 August 2024, file and serve any amended application with proper particulars. No amended application, written submissions or evidence have been filed by the applicant. Additionally, Registrar Foster also put the parties on notice that the matter would be listed for final hearing from late August.
On 31 January 2025, the Minister filed an Affidavit of Service affirmed on the same date, evidencing service of the following:
(a)On 22 March 2021, a sealed copy of the Court Book to the applicant’s nominated email and postal address as noted in the application for review as the service for address and as noted in his supporting affidavit.
(b)On 23 March 2021, a sealed copy of the Supplementary Court Book to the applicant’s nominated email and postal address as noted in the application for review as the service for address and as noted in his supporting affidavit.
(c)On 7 July 2021, a sealed copy of the Minister’s written submissions to the applicant’s nominated email address as the address for service and as noted in his supporting affidavit.
(d)On 31 January 2025, an email to the nominated address forwarding the email exchange between the Court and the applicant, including the Notice of Listing and Orders from the Court, informing the applicant that if he did not appear then the Minister would seek an order that the application be dismissed for non appearance and seek costs.
The Court sent a number of emails to the applicant’s nominated email address regarding the hearing as follows:
(a)On 16 December 2024, a Notice of Listing detailing the date, time and location of the hearing attaching timetabling Orders made in Chambers on 13 December 2024.
(b)On 23 January 2025, an email confirming the date, time and location of the hearing, along with a request that the applicant notify the Court if the assistance of an interpreter was required at the hearing.
(c)On 24 January 2025, by way of reply email, the applicant responded to the email from the Court dated 23 January 2025 stating ‘No, I do not need an interpreter’.
At 10am of the morning of the hearing, there was no appearance by or on behalf of the applicant in Court. At 10:05am the matter was again called 3 times outside of the Courtroom, with no appearance from the applicant.
CONSIDERATION
In light of the matters referred to in [15] to [18] of this judgment, I am satisfied the applicant had sufficient notice of the Hearing. Therefore, the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the applicant pay the Minister’s costs fixed in the amount of $5,600. I am satisfied this is an appropriate amount in the circumstances and order the applicant pay the Minister’s costs fixed in the amount of $5,600.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 3 February 2025
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