Nazir v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 518
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nazir v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 518
File number: MLG 1247 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 23 June 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicants – 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: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
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) & r 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 23 June 2022 Place: Perth Applicants: Did not participate Counsel for the First Respondent: Mr N Wood Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1247 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHSIN NAZIR
First Applicant
MUSSARAT MOHSIN
Second Applicant
MUHAMMAD AZAAN (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 JUNE 2022
THE COURT ORDERS THAT:
1.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, Citizenship and Multicultural Affairs”.
3.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).
4.The applicants pay the first respondent’s costs fixed in the sum of $7,853.
5.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 before this Court for a final hearing at 2.00pm (AEST) / 12.00pm (AWST) on 23 June 2022. When the matter was called, there was no appearance by or for the applicants.
In the circumstances, the Court made the following orders:
1.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, Citizenship and Multicultural Affairs”.
3.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).
4. The applicants pay the first respondent’s costs fixed in the sum of $7,853.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Melbourne Registry of this Court on 13 June 2017 (the “application”). The application was accompanied by an affidavit, affirmed and filed by the first applicant on 13 June 2017.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks judicial review of a confirmation decision made by the Administrative Appeals Tribunal on 25 May 2017.
On 14 February 2018, orders were made by Judge Kelly in the then Federal Circuit Court of Australia programming the matter to a show cause hearing on 28 February 2019 before Judge Kelly.
On 4 March 2019, further orders were made by Judge Kelly (by consent) dispensing with the need for a show cause hearing and programming the matter to a final hearing on a date to be fixed.
On 2 June 2021, my chambers wrote to the parties notifying them that the matter had been listed for a final hearing before this Court on 29 October 2021.
On 20 July 2022, my chambers notified the parties that the matter had been listed for a directions hearing by telephone on 26 July 2021 to ensure that the matter was ready to proceed to final hearing.
On 22 October 2021, this Court made orders (at the request of the first respondent (the “Minister”)), extending the time within which the Minister was required to file written submissions. The Court was advised by the Minister’s representative that they had been unable to obtain the applicants’ consent to the extension of time.
On 19 November 2021, my chambers notified the parties that the hearing had been re-listed to 13 June 2022.
On 23 May 2022, my chambers notified the parties that the hearing had been re-listed to 23 June 2022 at 2.00pm (AEST) / 12.00pm (AWST) via video link.
On 17 June 2022, the parties were reminded by my chambers of the date, time and location of the hearing and were also provided with instructions for attendance by video link using Microsoft Teams.
On 23 June 2022, the matter was called for a final hearing. Mr Wood of counsel appeared for the Minister. Unfortunately, there was no appearance by or for the applicants.
Mr Wood took the Court through correspondence from his instructors (Mills Oakley Lawyers) to the applicants serving various documents and advising the applicants that, in the event that they did not attend the hearing, the Minister would seek to have the matter dismissed and would also seek the Minister’s costs.
That correspondence, together with the other correspondence from chambers outlined above, was tendered and referenced as Exhibit 1.
Mr Wood also notified the Court that he had requested his instructors seek a copy of the first applicant’s movement records from the Department of Home Affairs (noting that there had been little engagement by the applicants since the judicial review application was filed). Those records show that the first applicant departed Australia on 3 February 2022.
The Court asked Mr Wood how the Minister wished to proceed in the circumstances.
Mr Wood advised that the Minister sought for the application to 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $7,853.
Noting the correspondence tendered as Exhibit 1, the Court was satisfied that the applicants had been properly notified of the hearing date and time and of what they needed to do to participate in that hearing. The applicants were also aware that if they did not appear at the hearing, the Minister would seek dismissal and a costs order.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate. The Minister’s written submissions were detailed and a solicitor had been briefed and was prepared to make oral submissions as required.
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 applicants can apply to have their application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 June 2022
SCHEDULE OF PARTIES
MLG 1247 of 2017 Applicants
Fourth Applicant:
MOHAMMAD KHAQAN
Fifth Applicant:
RANIA MOHSIN
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