Rameshkumar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 397
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rameshkumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 397
File number(s): SYG 828 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 20 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c) Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 12 March 2025 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Mr J. Djasmeini of Minter Ellison ORDERS
SYG 828 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD YUSUF RAMESHKUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed pursuant to rule 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 in the sum of $5,600.
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 ZIPSER
INTRODUCTION
On 3 April 2019, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 March 2019. The Tribunal decided that it did not have jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Act because the application to the Tribunal was lodged outside the prescribed time.
For the reasons that follow, the application is dismissed under rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
FACTUAL BACKGROUND
On 4 December 2018, the applicant, a citizen of Malaysia, applied for a medical treatment visa.
On 17 January 2019, a delegate of the first respondent refused to grant the visa.
On 7 February 2019, the applicant lodged an application for review of the delegate's decision in the Tribunal. The applicant paid 50% of the application fee and requested a fee reduction in respect of the balance.
On 12 February 2019, the Tribunal informed the applicant that his request for a fee reduction was refused and requested that he pay the balance of the application fee by 26 February 2019. The applicant did not pay the balance.
On 6 March 2019, the Tribunal found that, on application of the legislative scheme and because the applicant had not paid the balance, it did not have jurisdiction in the matter.
PROCEEDINGS IN THIS COURT
Application and procedural orders
On 3 April 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application contained three grounds as follows (as written):
1.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
2.The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing me to present my arguments.
3.The Tribunal failed correctly apply the law when refused to accept my appeal with fees waiver.
On 2 May 2019, a registrar made procedural orders, including that the applicant may file and serve an amended application and any evidence by 11 July 2019. The applicant did not file or serve any documents in response to this order.
On 27 March 2024, a registrar, at a listing at which the applicant appeared by telephone with the assistance of a Malay interpreter, made procedural orders, including that the applicant file and serve by 19 April 2024 a written submission, any amended application and any additional evidence. The applicant did not file or serve any documents in response to this order.
On 21 January 2025, a registrar made procedural orders, including that the matter was listed for hearing on 12 March 2025, and the applicant file and serve written submissions, any amended application and additional evidence at least 14 days before the hearing.
On 21 January 2025, the registry sent the parties an email attaching the orders made that day and stating the date, time and location of the hearing. The registry sent the email to the applicant at his email address for service in the Application.
On 4 March 2025, the first respondent sent an email to the applicant at his email address for service which attached a letter. The letter again informed the applicant of the date, time and location of the hearing and stated that, if the applicant did not appear at the hearing, the first respondent may apply to have the matter dismissed under rule 13.06(1)(c) of the Rules.
On 6 March 2025, my chambers sent a reminder email to the parties, including to the applicant at his email address for service in the Application, informing them of the date, time and location of the hearing.
Prior to the hearing on 12 March 2025, the applicant did not file a written submission, amended application or additional evidence.
Hearing on 12 March 2025
The hearing on 12 March 2025 commenced at the scheduled time of 2:15 pm and concluded shortly after 2:30 pm. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 2:15 pm my associate phoned the applicant on the mobile number recorded as his number in the Application. The applicant did not answer the call.
Jonathon Djasmeini from MinterEllison appeared for the first respondent. He requested that the application be dismissed under rule 13.06(1)(c) of the Rules.
As stated above, on 21 January 2025, 4 March 2025 and 6 March 2025 the applicant was sent emails which notified him of the date, time and location of the hearing. I am satisfied that the applicant was aware of the date, time and location of the hearing on 12 March 2025.
For the above reasons, at the hearing I indicted that I would accede to the first respondent’s request to dismiss the matter under rule 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 12 March 2025 and he is aggrieved that the Application was dismissed in his absence, pursuant to rule 17.05 of the Rules, he may apply to the Court to set aside the dismissal order. However, if the applicant files an application under rule 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 12 March 2025. In the absence of a satisfactory explanation from the applicant, his conduct may raise a question as to whether the Application involved an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the Application was dismissed in his absence and he decides to file an application under rule 17.05:
(a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded that there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Mr Djasmeini sought an order that the applicant pay the first respondent’s costs in the amount of $5,600. Mr Djasmeini stated that this amount was less than the first respondent’s solicitor/client costs. This amount appears fair and reasonable. It is appropriate to make an order in this amount.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 20 March 2025
0
0
1