Qureshi v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1054
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Qureshi v Minister for Immigration and Citizenship [2025] FedCFamC2G 1054
File number: MLG 2282 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 4 July 2025 Catchwords: MIGRATION – partner (temporary) (class UK) and partner (temporary) (class BS) visa – decision of the (then) 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 (Cth) – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5CB, 5F
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 4 July 2025 Place: Melbourne Counsel for the Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Mr A Price Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2282 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAHAD QAYYUM QURESHI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.Pursuant to Item 10 of Sch 16 to the Administrative Review Tribunal(Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.
3.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), the application filed on 1 July 2020 be dismissed for non-attendance.
4.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
THE COURT NOTES THAT:
1.The applicant can apply for reinstatement pursuant to r 17.05(2)(a) of the Rules.
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 Gostencnik
On 4 July 2025 I decided, 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), to dismiss the applicant’s judicial review application filed on 1 July 2020, for non-attendance. These are my reasons for doing so.
The applicant arrived in Australia on 28 December 2005 as the holder of a Temporary (Skilled) (Subclass 457) visa. That visa was cancelled by a delegate of the (then) Minister for Immigration and Citizenship on 18 February 2009, and the applicant subsequently applied for an Employer Nomination (Subclass 856) visa, which application was refused. On 31 December 2012, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Temporary) (Class BS) (Subclass 801) visa and was granted an associated Bridging visa. That visa application was refused by another delegate because the applicant failed to satisfy the relevant criteria set out in the Migration Regulations 1994 (Cth)[1] (Regulations). Upon application for review of that decision by the Migration Review Tribunal (MRT), the MRT affirmed the delegate’s decision on 3 February 2016. The applicant sought judicial review of the MRT’s decision by application to the Federal Circuit Court of Australia in March 2016, and on 29 July 2016 the relevant minister withdrew from that proceeding, the matter being referred to the Administrative Appeals Tribunal (Tribunal) shortly thereafter. On 12 October 2016, the Tribunal found that the applicant had satisfied the relevant requirements in the Regulations, and referred the matter to the first respondent for re-consideration.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
On 20 April 2017, a delegate of the Minister determined that the applicant did not satisfy the definition of ‘spouse’ nor was he in a ‘married relationship’ or have a ‘de facto partner’ within the meaning of ss 5F and 5CB of the Migration Act 1958 (Cth) (as it was then in force) and therefore failed to satisfy the requirements for grant of the Partner visa. The applicant sought review of the delegate’s decision by the Tribunal, which affirmed the delegate’s decision on 3 June 2020. On 1 July 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision, which is the matter now before me.
On 4 November 2020, a Registrar made orders for the conduct of the proceeding requiring, inter alia, the applicant file and serve an amended application, any supplementary court book and written submissions at least twenty-eight (28) days before the final hearing. On 20 May 2025, the matter was listed for a final hearing scheduled for 16 July 2025, and the applicant was notified of that hearing by email transmitted to his appointed legal representative. The applicant has not filed any materials as required by those orders.
On 2 July 2025, solicitors for the first respondent contacted my chambers and advised that the applicant had departed Australia in November 2021 and remained offshore, and that he had no right of return to Australia. Solicitors for the first respondent provided my chambers a notice of withdrawal of lawyer signed by the applicant’s (then) solicitor, which notice was filed with the Court by the applicant’s solicitor on the same day. Solicitors for the first respondent advised my chambers that they had attempted to contact the applicant at his last known email address to enquire whether he intended to pursue his application, but they had not received any reply within the specified timeframe.
By their correspondence to the Court, solicitors for the first respondent also sought orders extending the timetable in which the first respondent was required to file and serve materials, and listing the matter for directions before the Court in advance of the scheduled final hearing. A solicitor acting for the first respondent filed an affidavit affirmed on 1 July 2025, deposing that the applicant was outside of Australia, had no right of return to Australia, and held no valid visa. I made the orders sought by the first respondent and listed the matter for a case management hearing on 4 July 2025, directing the hearing be convened via Microsoft Teams to facilitate attendance by the applicant.
The applicant was invited to attend the case management hearing and provided with instructions to join the hearing by email to his last known email address. The hearing convened at the scheduled time, and the applicant did not appear. The first respondent’s legal representative appeared at the hearing, as did the applicant’s former solicitor, Ms Sokolowski, appearing as a friend of the Court to offer assistance and information if required. Ms Sokolowski confirmed that she did not hold instructions to act on behalf of the applicant, and that to her knowledge the applicant remained outside Australia and she had been unable to establish contact with him.
The first respondent made an oral application to dismiss the application pursuant to r 13.06(1)(c) of the Rules.
I consider, in circumstances where: the applicant is offshore; he does not appear to have a right to return; he has ceased communicating with his former lawyers, necessitating their withdrawal; he has not actively participated in the proceeding by filing materials as directed; he was notified of the hearing by email dispatched to the applicant’s last known email address; he has not otherwise communicated with the Court or the first respondent; and has not attended the case management hearing, that it is appropriate that the application be dismissed for non-attendance, and I do so.
I note that the applicant can apply under r 17.05(2)(a) of the Rules for reinstatement of the application if that is his wish.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate: D Roma
Dated: 8 July 2025
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