Mirza v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 907
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mirza v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 907
File number(s): SYG 1607 of 2021 Judgment of: JUDGE CLEARY Date of judgment: 11 June 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered. Legislation: Migration Act 1958 (Cth) ss 362B(1A)(b) 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.01, 13.06(1)(c), 17.05
Migration Regulations 1994 (Cth) cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 11 June 2025 Place: Parramatta Solicitor for the Applicant: No appearance Solicitor for the Respondents: Mr T. Pattinson of Mills Oakley Lawyers ORDERS
SYG 1607 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIR BAIG MIRZA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed pursuant to rule 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 amount of $6,100.
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 CLEARY
INTRODUCTION
The matter was listed before me today, 11 June 2025, for the final hearing of an application for judicial review filed by the applicant and made under s 476 of the Migration Act 1958 (Cth) (Act). In his application the applicant has sought review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 August 2021 which affirmed a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa (temporary student visa).
The applicant did not attend the final hearing of his application in this Court today, 11 June 2025. For the reasons that follow, the application is dismissed under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
FACTUAL BACKGROUND
On 30 September 2019, the applicant, a citizen of India, applied for a temporary student visa.
On 29 November 2019, a delegate of the first respondent refused to grant the applicant a student visa on the basis that it was not satisfied the applicant satisfied cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations).
On 6 December 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a mobile number and an email address.
On 17 March 2021, the applicant appointed a lawyer as his representative and authorised recipient.
On 7 July 2021, the applicant, through his representative, was invited to attend an in-person hearing before the Tribunal scheduled for 23 July 2021 at 1:30 pm.
On 23 July 2021, the Tribunal dismissed the application for non-appearance under
s 362B(1A)(b) of the Act. The same day, the Tribunal notified the applicant of the non-appearance decision by way of an email sent to his representative. In the covering letter, the Tribunal informed the applicant that he could apply for reinstatement by 6 August 2021. The applicant did not apply for reinstatement.
On 9 August 2021, the Tribunal made a decision confirming its decision to dismiss the application pursuant to s 362B(1A)(b) of the Act. The applicant was notified of the decision via email the same day.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 25 August 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s confirmation decision dated 23 July 2021.
On 24 April 2025, the proceedings were docketed to me and set down before me for final hearing on 11 June 2025. On 24 April 2025, a notice of listing email was sent to the applicant, informing him of the date, time and location of the hearing (Exhibit R1)
On 13 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
On 26 May 2025, first respondent sent a further reminder email to the applicant, informing him that if he did not appear, the first respondent may seek orders that his application be dismissed with costs (Exhibit R2). Several other emails followed informing the applicant of the date, time and location of the hearing, including a notice of an affidavit of service by the first respondent on 30 May 2025 (Exhibit R3) and a reminder of listing from the Court on 5 June 2025 (Exhibit R4).
On 10 June 2025 at 4:38 pm, the afternoon before the hearing, the applicant emailed a Notice of Discontinuance to the Court. The Court sent an email at 5:15 pm to the parties advising them that as the Notice of Discontinuance was filed outside of the 14-day time period under r 13.01 of the Rules, it could not be filed, and that the applicant was therefore required to attend the hearing today, 11 June 2025, where he could seek leave to file a Notice of Discontinuance under r 13.01(2).
The applicant has not filed any written submissions, any amended application or additional evidence.
Hearing on 11 June 2025
The hearing on 11 June 2025 commenced at the scheduled time of 10:15 am and concluded at 10:38 am. The matter was called outside the Court prior to the commencement of the hearing. After the commencement of the hearing, the Court adjourned for approximately 15 minutes to allow the applicant time to appear, in the event that the applicant was running late. At 10:30 am the Court resumed, and the matter was called outside the Court again. There was no appearance by the applicant.
Mr Pattinson from Mills Oakley Lawyers appeared for the first respondent. At the resumed hearing the first respondent made an application for an order under r 13.06(1)(c) of Rules, dismissing the application on the basis of the applicant’s absence from the hearing on 10 June 2025.
As was outlined above, on 24 April 2025 and again on 26 May 2025, 30 May 2025 and 5 June 2025, the applicant was sent emails which notified him of the date, time and location of the hearing. The Court is satisfied that the applicant was aware of the date, time and location of the hearing today, 11 June 2025, and was also aware of the consequences of not appearing today, namely that the application would be dismissed with an order for costs.
For these reasons, I will make the order for dismissal sought by the first respondent under r 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 11 June 2025 and he is aggrieved that the application was dismissed in his absence, he may apply to the Court to set aside the dismissal order pursuant to r 17.05 of the Rules. However, if the applicant files an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 11 June 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the Application was dismissed in his absence, and he decides to file an application under r 17.05:
(a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding; and
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Pattinson sought an order that the applicant pay the first respondent’s costs in the amount of $6,100. The amount sought is less than the scale amount set out in Schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. The Court will make a costs order for the amount sought.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 11 June 2025
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