Saraphok v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 105
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saraphok v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 105
File number: MLG 3203 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 24 January 2025 Catchwords: MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link– no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Migration Act 1958 (Cth), s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) & 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 24 January 2025 Place: Perth Applicant: No appearance by or on behalf of the applicant Counsel for the First Respondent: Ms J Connolly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3203 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RINRADA SARAPHOK
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.The application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
5.The applicant pay the first respondent’s costs, fixed in the sum of $6,600.
6.Written reasons for judgment will be published from Chambers at a later date.
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 KENDALL:
INTRODUCTION
This matter was listed for a final hearing (by video link) before the Court at 3.30pm (AEDT) / 12.30pm (AWST) on 24 January 2025. When the matter was called, there was no appearance by or on behalf of the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
4.The application be dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
5. The applicant pay the first respondent’s costs, fixed in the sum of $6,600.
6. Written reasons for judgment will be published from Chambers at a later date.
These reasons for judgment are those referred to in order 6 above. They explain why the Court dismissed the matter 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) (the “Rules”).
BACKGROUND
Before the Court is an application for judicial review which was filed in the Melbourne Registry of this Court on 25 October 2018 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant and filed in this Court on 25 October 2018.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the then Administrative Appeals Tribunal (the “Tribunal”) on 10 October 2018. In that decision, the Tribunal affirmed the decision made by a delegate of the first respondent (the “Minister”) cancelling the applicant’s Student (Class TU) (Subclass 573) visa.
On 27 July 2020, orders were made by Registrar Carlton of the then Federal Circuit Court of Australia programming the matter to “a final hearing on a date to be fixed”.
On 1 July 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court (by video link) on 29 January 2025 at 3.00pm (AEDT) / 12.00pm (AWST).
On 18 November 2024, the parties were notified that, due to judicial unavailability, the hearing listed on 29 January 2025 had been vacated and the matter had been re-listed (for a final hearing) at 3.30pm (AEDT) / 12.30pm (AWST) on 24 January 2025.
On 20 January 2025, the parties were reminded by my chambers of the date and time of the hearing. They were also given instructions about how they could attend that hearing by video link (using Microsoft Teams).
As outlined above, when the matter came before this Court (on 24 January 2025), there was no appearance by or on behalf of the applicant.
Ms Jessica Connolly (“Mr Connolly”) from the Australian Government Solicitor appeared at the hearing (by video link) on behalf of the Minister.
The Court confirmed that it had before it the correspondence from my chambers to the parties (referenced above). This correspondence was tendered (together) and referenced as Exhibit 1.
The Court also confirmed that it had before it an affidavit of service of Ms Connolly (affirmed and filed on 20 January 2025 (the “Connolly affidavit”)). The material annexed to that affidavit confirmed service of various documents on the applicant and put the applicant on notice that, should she not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs. The Connolly affidavit was taken as read and in evidence.
The Court asked Ms Connolly how the Minister wished to proceed.
Ms Connolly explained that there was an error in one of the attachments to her affidavit (being correspondence to the applicant which inadvertently contained the incorrect hearing date of 25 January 2025 instead of 24 January 2025).
The Court was satisfied that the applicant had been properly notified (by the Court) of the correct hearing date and was prepared to proceed on the basis of the materials before it.
That being the case, Ms Connolly advised the Court that the Minister sought to have the matter dismissed on the basis of the applicant’s non-appearance pursuant to r 13.06(1)(c) of the Rules. Ms Connolly also sought the Minister’s costs, fixed in the sum of $6,600.
Noting the correspondence contained in Exhibit 1 and the Connolly affidavit, the Court was satisfied that the applicant had been properly notified of the hearing date and time. She was also advised of how she could appear at that hearing (by video link) and the possible cost consequences of failing to attend.
In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Ms Connolly was prepared to make oral submissions as required by the Court.
CONCLUSION
In the circumstances, the Court made orders to dismiss the application for non-appearance and awarded costs to the Minister, as outlined at [2] above.
The Court notes that the applicant can apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
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