Mootoosamy v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1078
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mootoosamy v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1078
File number: MLG 1480 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 17 October 2024 Catchwords: MIGRATION – student (subclass 500) visa – decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, rr 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth) sch 2 cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 16 May 2024 Date of hearing: 17 October 2024 Place: Melbourne Counsel for the Applicant: No appearance Counsel for the First Respondent: Ms Rath Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1480 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARASPADEE MOOTOOSAMY
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application filed on 15 May 2019 be dismissed for non-appearance.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
By an application filed in the Court on 15 May 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 16 April 2019, affirming a decision of a delegate of the first respondent to refuse to grant the applicant a student visa. The applicant is a citizen of Mauritius who arrived in Australia on 2 February 2020 holding a (Class TU) (Subclass 572) student visa. The applicant subsequently held various student and bridging visas and, relevantly, on 2 May 2017, the applicant applied for a (Temporary) (Class TU) (Subclass 500) student visa which was the subject of the delegate's refusal and the decision of the Tribunal.
The first respondent's delegate refused to grant the applicant a visa and made that decision on 20 September 2017 on the basis that the applicant, in the view of the delegate, did not satisfy the genuine temporary entrant criteria found in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant applied to the Tribunal for review of the delegate's decision. Subsequently, the applicant was invited to attend and did attend, on 1 April 2019, a hearing at the Tribunal in which the applicant gave evidence and tendered some further documents. She was also assisted at the hearing by a representative.
The Tribunal affirmed the delegate's decision on 16 April 2019, as I have already indicated. The Tribunal's reasons disclose that after considering: the applicants study, immigration and travel history; her circumstances in Mauritius and in Australia; and the value of the course of study to the applicant's future, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and found, like the delegate, that the applicant did not meet the criteria in cl 500.212 of the Regulations. Insofar as the application to this Court is concerned, a Registrar of the Court, by consent, made orders on 13 October 2021 which required, amongst other things, that the applicant file and serve, 28 days before the final hearing date, any amended application with proper particulars together with any affidavit and written submissions.
Subsequently, parts of those orders, including those pertaining to the applicant were vacated by further order of the Registrar on 11 April 2024. At that time, the Registrar ordered that the applicant file and serve, by 2 May 2024, written submissions, an amended application with proper particulars and any evidence on which the applicant seeks to rely. The Registrar also noted that the parties had been put on notice that the matter was likely to be listed for a hearing in mid-2024, perhaps, somewhat ambitiously at the time. Subsequently, a notice of listing was sent to the applicant's email address – which is the address specified in the application for service upon the applicant – on 4 September 2024, wherein the notice specified that the application was listed for a final hearing on 17 October 2024 at 10:15 am before me.
On 9 October 2024, my associate wrote to the parties requesting the first respondent to provide a hard copy of the Court Book to be delivered to my chambers by 16 October 2024. Relevantly, that correspondence referred to the hearing of the application which was listed before me, and it specified the date and time of the hearing, that is, 17 October 2024 at 10:15 am. The applicant did not attend the hearing at the scheduled time before me, and I adjourned the application so that efforts might be made to contact the applicant to seek an explanation for her non-attendance.
As I indicated at the resumption, the applicant made contact with my associate following my associate's attempt to contact her and during the telephone discussion, the applicant advised my associate that she had been suffering diarrhoea and had tested positive for COVID-19, and that she attempted to send an email to the Court but must have sent that email to the wrong email address. Neither the Court nor my associate have received any email from the applicant before the commencement of the proceeding this morning seeking an adjournment or explaining her circumstances.
In any event, I instructed my associate to contact the applicant again to ask the applicant to produce some evidence of the positive COVID test, for example, by way of a photo of a home testing kit showing a positive result and to also provide a copy of the email the applicant said that she had sent, or attempted, to send to the Court earlier today. The applicant told my associate that she had, in fact, tested positive for COVID a week or so ago and had not conducted a test today. My associate asked the applicant to take another test and to provide the result by return email.
Subsequent attempts to contact the applicant by telephone have been unsuccessful, and the applicant has not provided any evidence of a positive COVID test today, nor has she provided a copy of the email the applicant alleged that she had sent or attempted to send to the Court, albeit to the wrong email address. It is in these circumstances that the first respondent applies orally for an order dismissing the application for judicial review for non-attendance, 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). In the circumstances I have described, I am not satisfied that the applicant has provided any acceptable explanation for her non-attendance.
I am not satisfied that the applicant made any effort to contact the Court prior to the commencement of the proceeding, and I am satisfied that the applicant was properly notified and was aware of the hearing before me. The applicant could have simply replied to the email sent by my associate to her on 9 October 2024 and sought an adjournment by reason of illness, but there is no indication that any attempt was made nor has any evidence of illness been provided. I therefore consider that it is appropriate to make an order that the applicant's judicial review application be dismissed for non-attendance, pursuant to r 13.06(1)(c) of the Rules. An order will be made accordingly.
The first respondent also seeks his costs fixed in the sum of $5,000. Although the matter will be dismissed for non-attendance, it has or will, in effect, have been dismissed at a final hearing, and so, the first respondent has done everything that is required of him to prepare for a final hearing, apart from his counsel making oral submissions. Given the overall history of this matter and the fact that the sum sought by the first respondent is less than the amount for which provision is made in Sch 2, Pt 2 of the Rules for an application determined at final hearing, I consider that an order in the sum of $5,000 for costs is reasonable and appropriate.
The applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 21 October 2024
0
0
2