Muthukuda Arachchige Don v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1156
•4 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Muthukuda Arachchige Don v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1156
File number: MLG 2317 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 4 November 2024 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – 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: 21 Date of hearing: 4 November 2024 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr T Young Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2317 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SASHINDRA ISURU KUMARA MUTHUKUDA ARACHCHIGE DON
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The 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 name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $5,454.55.
6.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 (by video link) on 4 November 2024 at 3.30pm (AEDT) / 12.30pm (AWST). 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 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 name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.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).
5.The applicant pay the first respondent’s costs, fixed in the sum of $5,454.55.
6.Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 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 Melbourne Registry of this Court on 6 August 2018 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 3 August 2018 (and filed in this Court on 6 August 2018).
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 then Administrative Appeals Tribunal (the “Tribunal”) on 18 July 2018. In that decision, the Tribunal affirmed a decision made by a delegate of the first respondent (the “Minister”) refusing to grant the applicant a Student (Class TU) (Subclass 500) visa.
On 5 February 2020, orders were made by Registrar Carlton of the then Federal Circuit Court of Australia programming the matter to a “show cause” hearing “on a date to be advised”.
On 1 July 2024, orders were made by this Court vacating orders made by Registrar Carlton regarding the “show cause” hearing and programming the matter to a “final hearing on a date to be advised”.
Later that same day (being on 1 July 2024), my chambers sent an email to the parties with a copy of the orders (referenced at [7] above) and advising them that the matter had been listed for a final hearing before this Court (by video link) at 3.30pm (AEDT) / 12.30pm (AWST) on 4 November 2024.
On 29 October 2024, correspondence was received from Mr Anthony Gardner (“Mr Gardner”) at Mills Oakley (solicitors for the Minister) with a copy of the Minister’s submissions.
On 31 October 2024, my chambers replied to Mr Gardner acknowledging receipt of the correspondence, confirming that the matter remained listed for a final hearing on 4 November 2024 at 3.30pm (AEDT) / 12.30pm (AWST) and provided details of how the parties could attend that hearing by video link (using Microsoft Teams). The applicant was included in that email correspondence.
Shortly before the commencement of the hearing in this matter (on 4 November 2024), Mr Taylor Young (“Mr Young”) from Mills Oakley sent an email to my chambers annexing correspondence from their offices to the applicant. That correspondence 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.
As outlined above, when the matter came before this Court (at 12.43pm (AWST) on 4 November 2024 by video link), there was no appearance by or on behalf of the applicant.
Ms Young appeared at the hearing on behalf of the Minister (by video link).
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). That correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it the correspondence from Mr Young to my chambers (with attachments, as referenced above). That correspondence was tendered and referenced as Exhibit 2.
The Court asked Mr Young how the Minister wished to proceed.
Mr Young 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). Mr Young also sought the Minister’s costs, fixed in the sum of $5,454.55.
Noting the correspondence contained in Exhibits 1 and 2, the Court was satisfied that the applicant had been properly notified of the hearing date and time. He was also 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 Young 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 twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 7 November 2024
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