Sandhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1115
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1115
File number: MLG 3622 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 23 October 2024 Catchwords: MIGRATION – Medical Treatment (Visitor) (Class UB) subclass 602 visa – decision of the Administrative Review 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 – application dismissed with costs Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, rr 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth) schs 2, 3, item 3001, cls 602, 602.213
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of last submission/s: 9 October 2024 Date of hearing: 23 October 2024 Place: Melbourne Counsel for the Applicant: No appearance Counsel for the First Respondent: Ms Griffiths-Mark Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs
Table of Corrections 31 October 2024 In paragraph 2, the number “25” is amended to “23”. 31 October 2024 In paragraph 5, the year “2023” is amended to “2024.” 31 October 2024 In paragraph 6, the word “AEDT” is omitted. 31 October 2024 In paragraph 7, the word “Minister” is amended to “first respondent”. 31 October 2024 In paragraph 12, the words “I note” are omitted. ORDERS
MLG 3622 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NISHANTDEEP SINGH SANDHU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
1723 OCTOBER 2024Amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 31 October 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.Pursuant to
Ruler 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the application filed on 29 November 2018 be dismissed for non-attendanceappearance.4.The applicant pay the first respondent's costs fixed in the sum of $7,467.00.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
By his application filed on 29 November 2018, the applicant sought judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) made on 1 November 2018. The Tribunal affirmed a decision of a delegate of the (then) Minister for Home Affairs refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa.
On 19 April 2017, the applicant who is an Indian citizen and then aged 23 years, applied for the visa on the grounds that he suffered chronic lower back pain related to myofascial pain. By a decision made on 24 April 2017, the delegate refused the applicant a grant of a visa. The delegate concluded that the applicant did not satisfy the criteria for the visa, namely cl 602 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). This was because the visa application was not made within 28 days after the last day the applicant held a substantive visa.
Consequently, according to the delegate, the applicant did not satisfy the criteria in item 3001 of Sch 3 to the Regulations, and so, did not satisfy cl 602. The applicant applied to the Tribunal for a review of the delegate's decision on 9 May 2017. By its decision on 1 November 2018, notice of which was given to the applicant on the following day, being 2 November 2018, the Tribunal relevantly found that the last substantive visa held by the applicant ceased on 17 January 2017. The application for the visa at issue was made on 19 April 2017.
The Tribunal concluded the applicant did not meet the criteria in item 3001 of Sch 3, so did not meet cl 602.213 of Sch 2 of the Regulations and, therefore, did not meet the requirement for a grant of the visa the subject of the review. As already noted, the applicant subsequently made an application to the Court for judicial review.
The matter was listed for final hearing on 23 October 2024. The applicant has not attended. At the commencement of the proceeding, my associate made a call outside the Court for the applicant and there was no attendance.
I adjourned the matter for approximately half an hour to enable enquiries to be made as to the applicant's whereabouts and to see whether there had been any attempt to contact the Court with some explanation for non-attendance or delayed attendance. My associate attempted to contact the applicant on three occasions by telephone. None of the calls were picked up. My associate also sent an email to the applicant at the applicant's email address as specified in the originating application and as things presently stand, there has been no response. By email sent on 5 September 2024 from the Court's migration team to, amongst others, the applicant at the applicant's email address as specified in the application, the applicant was notified that the matter had been listed for final hearing before me on Wednesday, 23 October 2024 at 10:15 am for an in person hearing at the Court's premises at 305 William Street, Melbourne.
By correspondence to the applicant as well as to the first respondent's solicitor on 16 October 2024, my associate asked parties to confirm attendance as requested. The first respondent provided a hard copy of the court book and the first respondent's written submissions but relevantly, the opening sentence of that email reminds the parties that the matter is listed before me on 23 October 2024 at 10:15 am.
It is in these circumstances that the first respondent has applied orally for an order dismissing the application for judicial review for non-attendance 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). Due to the circumstances that I have described, I am satisfied that the applicant was properly notified of the hearing and that the applicant did not attend the hearing. The applicant has not applied for an adjournment of the proceeding or provided any explanation for his absence today or for his non-attendance. Efforts made by my associate to contact the applicant today to seek an explanation have not resulted in any attendance or any explanation for non-attendance.
In these circumstances, I therefore consider that it is appropriate to make an order that the applicant's judicial review application be dismissed for non-attendance pursuant to r 13.06(1)(c). That order will be made accordingly.
The first respondent also seeks costs fixed in the sum of $7,467.00. Although the application will be dismissed for the applicant's non-attendance, it is nonetheless a dismissal at final hearing. Apart from the first respondent’s solicitor making oral submissions today, the first respondent has undertaken all other work necessary to prepare and ready this matter for final hearing today and has, by his solicitor, attended today's hearing.
Considering the overall history of this matter, I am therefore satisfied that it is appropriate to make an order that the applicant pay the first respondent’s costs fixed in the sum of $7,467.00, noting that that amount is less than the amount for which provision is made in Sch 2, Pt 2 of the Rules. Orders will also be made amending the names of the first and second respondents.
The applicant can apply to have the application reinstated pursuant to r 17.05(2)(a) of the Rules, at which time, he will have an opportunity to explain his non-attendance.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 29 October 2024
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