Saqib v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 200
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saqib v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 200
File number: MLG 837 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 11 February 2025 Catchwords: MIGRATION – Student (subclass 573) 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a), sch 2, pt 2, div 1, item 3,
Migration Regulations 1994 (Cth) sch 8, condition 8202(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 28 January 2025 Date of hearing: 11 February 2025 Place: Melbourne Counsel for the Applicant: No appearance Counsel for the First Respondent: Mr J Sathiendrakumar Solicitors for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 837 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMZA SAQIB
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.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 application filed on 22 March 2019 be dismissed for non-appearance.
2.The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.
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)Judge Gostencnik
The applicant is a citizen of Pakistan who was granted a Student (Temporary) (Class TU) (Subclass 573) visa on 3 July 2014 to study a Bachelor of Business at Holmes Institute. A delegate of the (then) Minister for Immigration and Border Protection issued the applicant with a notice of intention to consider cancellation of the visa on 3 March 2017 alleging non-compliance by the applicant with condition 8202(2)(a) of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations). The applicant was advised that the relevant non-compliance involved his failure to continue enrolment in a full-time registered course, and based on information available to the delegate through the Provider Registration and International Student Management System, it appeared to the delegate that the applicant had not been enrolled in a course of study since at least 3 October 2016. The delegate subsequently cancelled the applicant's student visa on 30 March 2017 on the basis that the delegate was not satisfied the applicant was enrolled in a course of study since 3 October 2016, as required by condition 8202(2)(a) of Sch 8 to the Regulations.
The applicant applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate's decision, and on 26 February 2019, the Tribunal decided to affirm the delegate's decision, again on the basis that the applicant was not enrolled in a course of study as required by the Regulations. By his application filed on 22 March 2019, the applicant seeks judicial review of the Tribunal's decision and sets out three grounds in support of his application. For the purposes of the dismissal application made by the first respondent, those grounds need not be recounted.
The applicant's application to the Court specified an email address for service of documents. The applicant was sent a notice of listing to attend a callover before a Registrar of the Court scheduled for 27 November 2024 and that notice was transmitted by email to the address as set out in the applicant's application. The Registrar made certain orders on 27 November 2024, and according to those orders the applicant appeared by telephone, which indicates to me that the applicant received the email and the notice of the callover, that the email address to which it was sent was then functioning, and that the applicant responded by his attendance by telephone.
On 16 December 2024, the Court's migration team sent to the parties a notice of listing to attend a final hearing of the judicial review application scheduled for 11 February 2025 at 10:00 am before me. The notice of listing was sent to the applicant's email address as specified in his application. On 29 January 2025, my associate sent an email to the parties in which she requested, amongst other things, the first respondent to provide hard copies of certain documents that have been filed in the Court, and relevantly reminding the parties that the hearing had been scheduled for 10:00 am on 11 February 2025.
On 4 February 2025, the first respondent filed an affidavit which was affirmed on that day by a solicitor employed by Sparke Helmore Lawyers, the first respondent's solicitors, deposing that he believes that the applicant was no longer in Australia, and annexed a movement history which had been obtained from the Department of Home Affairs indicating that the applicant departed Australia on 16 December 2024. My associate sent the applicant an email on 4 February 2025, inquiring whether the applicant intended to appear at the hearing; alternatively, whether he would like a hearing link to be provided so that he could appear by electronic means. The applicant did not respond to that email that was sent to the address set out in the applicant's application.
The applicant self-evidently did not attend the scheduled hearing before me. There have been no communications received by either my chambers or the registry indicating that the applicant was unable to attend or that he wished to attend by some other means. There has been no request for any adjournment, nor has there been any explanation provided by the applicant for his failure to attend the scheduled hearing.
At the commencement of the hearing, I adjourned the proceeding for 15 or so minutes to enable inquiries to be made about the applicant's whereabouts and whether he intended to attend the hearing. My associate placed three telephone calls to the applicant's mobile phone number which is also recorded in the application, and those telephone calls were diverted to the applicant's voicemail, and on the third occasion my associate left a voicemail message asking for him to contact the Court. My associate also sent the applicant an email asking him to make contact.
Despite those endeavours, there has been no communication at the time of delivering judgment and still no explanation for the applicant's non-attendance, and it is in these circumstances that the first respondent makes an application for an order dismissing the judicial review application because of 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).
In the circumstances that I have just described, I am satisfied that the applicant has been given adequate and proper notice of the hearing, and that the hearing notification was sent to a functioning email address at which the nominated documents should be served. I am satisfied that appropriate steps were taken both before and after the commencement of the hearing to contact the applicant to ascertain whether he wished to continue to participate with his application or to seek an explanation for his non-attendance, and those efforts have not produced any satisfactory result.
In those circumstances, given the applicant has not attended, appears to be overseas, and has not sought an adjournment, I consider that it is appropriate to make an order that the applicant's judicial review application be dismissed for non-attendance. An order to that effect will shortly be made.
The first respondent seeks an order for costs fixed in the sum of $5,000.00, and although the matter will be dismissed because of the applicant's failure to attend, the matter is in effect being dismissed at final hearing. The first respondent has filed written submissions, and apart from making any oral arguments today, has done all that the first respondent is required to do to prepare and finalise the matter at final hearing.
Given the overall history of the matter, and noting that the sum of $5,000.00 is less than the current scale amount in Pt 2, Div 1, item 3 of Sch 2 to the Rules for disposal of the matter at final hearing, I consider that the amount sought is both reasonable and appropriate, and so an order that the applicant pay the first respondent's costs in the fixed sum of $5,000.00 will also be made.
The applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 17 February 2025
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