Nazir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 213
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nazir v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 213
File number: MLG 2609 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 29 March 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for final hearing – no appearance by or for 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 21 March 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms B Roscoe Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2609 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATIF NAZIR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The first respondent have leave to rely on the affidavit of Brianna Roscoe affirmed on 18 March 2022 and filed on 19 March 2022.
2.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).
3.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
4.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 the Court for a final hearing on 21 March 2022. When the matter was called there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.The first respondent have leave to rely on the affidavit of Brianna Roscoe affirmed on 18 March 2022 and filed on 19 March 2022.
2.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).
3. The applicant pay the first respondent’s costs fixed in the sum of $5,000.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 29 November 2017 (the “application”). The application was accompanied by an affidavit, affirmed and filed by the applicant on 29 November 2017.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 2 November 2017.
On 28 August 2018, orders were made by Registrar Allaway in this Court (by consent) programming the matter to a final hearing. That hearing was vacated.
On 21 October 2021, a directions hearing was listed before this Court as it had been quite some time since the application had been filed. The applicant attempted to join the directions hearing part way through the directions hearing but, despite the Court’s best efforts, he could not be heard.
The Court ultimately programmed the matter to a final hearing at 1.00pm (AEDT) / 10.00am (AWST) on 21 March 2022. The applicant was notified by chambers on 2 November 2021 of the date, time and location of the hearing and what he needed to do to attend by video.
On 19 March 2022, the Minister filed an affidavit of Brianna Roscoe (“Ms Roscoe”) affirmed on 18 March 2022. That affidavit provided evidence that the applicant is currently offshore and has no “right of return to Australia”.
On 21 March 2022, the matter was called for a final hearing. Ms Roscoe appeared for the Minister. Unfortunately, there was no appearance by or for the applicant.
The Court asked Ms Roscoe how the Minister wished to proceed in the circumstances.
Ms Roscoe advised that she sought to have her affidavit tendered and read into evidence. The Court did so. Ms Roscoe also sought to rely on her affidavit, together with correspondence from her office to the applicant dated 25 January 2022 in which the Minister advised the applicant that, if he did not appear at the hearing, the Minister would seek 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 would seek a costs order (Exhibit 1).
Ms Roscoe then sought to rely on correspondence from her to the applicant dated 19 March 2022. That correspondence served a copy of Ms Roscoe’s affidavit dated 18 March 2022 and again notified the applicant that, in the event that he did not appear at the final hearing of the matter on 21 March 2022, the Minister might seek dismissal for non-appearance and an order for costs. That correspondence was also tendered by Ms Roscoe (Exhibit 2).
Ms Roscoe ultimately sought for the matter to be dismissed pursuant to r 13.06(1)(c) of the Rules and sought the Minister’s costs, fixed in the sum of $5,000.
Noting the correspondence outlined above, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing.
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.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 March 2022
0
0
0