Saqib v Minister for Immigration, Citizenship, and Multicultural Affairs
[2024] FedCFamC2G 532
•30 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saqib v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] FedCFamC2G 532
File number(s): ADG 178 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 30 May 2024 Catchwords: MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – refusal of employer nomination scheme class 186 visa – dismissal for non-appearance 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: 7 Date of last submission/s: 30 May 2024 Date of hearing: 30 May 2024 Place: Adelaide Applicants: No appearance by or for the Applicants Counsel for the First Respondent: Ms T Weir Solicitor for the Respondents: Hwl Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 178 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD SAJJAD SAQIB
First Applicant
NAVEELA RAZAQ
Second Applicant
MUHAMMAD ATISAM ALI (and another named in the Schedule)
Third Applicant
AND: NISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.The application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicants pay the First Respondent’s costs in the sum of $5,600 by 30 June 2024.
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
(Delivered ex tempore and edited from the transcript)Judge Lucev
The originating application in these proceedings filed on 8 May 2020 seeks judicial review of a decision (“Judicial Review Application”) of the Administrative Appeals Tribunal affirming a delegate’s decision to refuse the first applicant, Mr Muhammad Sajjad Saqib (“Mr Saqib”), an employer nomination scheme class 186 visa. The matter was allocated to the docket of the Court as presently constituted in February 2024. A directions hearing was held on 4 March 2024 which was attended by Mr Saqib in person, and the Court made a number of orders for the filing of materials by the parties. The Court notes that the applicants did not file any of the materials which they were permitted to file, which included an amended Judicial Review Application, further affidavits, supplementary court book and written submissions.
There was also an order made at the 4 March 2024 directions hearing setting the matter down for final hearing before the Court as presently constituted at 10:00am on 30 May 2024 in the Adelaide Registry with leave to all parties to appear by video link. That order of 4 March 2024 also had a note appended to the orders which indicated that if the applicants did not appear at the final hearing, that the Judicial Review Application may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”).
By way of a letter dated 8 May 2024 the solicitors for the Minister wrote to the applicants - and the Court notes that there is a primary applicant, Mr Saqib, and a number of dependent secondary applicants - enclosing a copy of the Minister’s written submissions which were filed in accordance with the Court's orders of 4 March 2024, and in the final paragraph of that letter reminded the applicants that the matter was listed for hearing at 10:00am today in the Adelaide Registry and that the Minister's representative had sought leave to appear via videolink, and then the final sentence which reads as follows:
If you do not attend the scheduled hearing, we will seek orders from the Court that your matter be dismissed with costs.
On 23 May 2024 Chambers sent to the parties the usual correspondence confirming hearing protocols. On 24 May 2024 the primary applicant Mr Saqib sent an email to chambers, and in that email he asked to appear by video link because he was not in Australia and explained the circumstances behind that, and in the final paragraph of that email asked for leave to be granted to participate in the hearing via video link. The Court notes that leave had already been granted by reason of the orders made on 4 March 2024. But, in any event, a response was sent by Chambers to Mr Saqib by email thanking him for his email and indicating that all parties had leave to attend via video link for the hearing, the date and time of which, 30 May 2024 at 10:00am, was again set out in that email, and the dial-in details were also attached again to that email.
At 10:00am this morning the matter was called, and the applicants had not dialled in to the hearing. In the circumstances, and without objection by Ms Weir who appears for the Minister today, the Court adjourned the matter for a short period and indicated that, bearing in mind the email of 24 May 2024 - in which Mr Saqib evinced an intention for the applicants to appear - that it was appropriate that the matter be adjourned for a short time and that endeavours be made to contact Mr Saqib to see whether the applicants wished to appear. As the Court indicated when the hearing resumed, at approximately 10.45am, after the adjournment, the Associate has endeavoured to contact the primary applicant Mr Saqib on the telephone number which is in the Judicial Review Application and on the file, and has also sent an email to the email address in the Judicial Review Application and on the file advising that the hearing commenced at 10:00am and seeking that Mr Saqib and the other applicants join the hearing.
In the circumstances the Court is satisfied that all that is able to be done has been done by way of endeavouring to contact the applicants and to facilitate their appearance at this hearing this morning. The applicants have not, however, appeared, and it is appropriate in the circumstances that there be an order made dismissing the Judicial Review Application for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules, and there will be an order made accordingly.
The Minister seeks costs in the sum of $5,600. The Court notes that although the matter has been dismissed for non-appearance, it has been dismissed at the final hearing, and, effectively, the Minister has done everything he was required to do for a final hearing, apart from make oral submissions in relation to the matter. Given the overall history of the matter, the Court is satisfied that it is appropriate that a costs order be made in the sum of $5,600, and there be an order that the applicants pay the first respondent's costs in that sum by 30 June 2024.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 11 June 2024
SCHEDULE OF PARTIES
ADG 178 of 2020 Applicants
Fourth Applicant:
HAREEM FATIMA
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