Shen v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1090
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1090
File number(s): SYG 478 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 27 May 2025 Catchwords: MIGRATION – Non-appearance of the applicant at the final hearing – Where the applicant was properly informed of the hearing – 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06, 13.13 Division: General Number of paragraphs: 42 Date of hearing: 27 May 2025 Place: Sydney Applicant: No appearance by or on behalf of the applicant Solicitor for the First Respondent: Mr A Sharma (HWL Ebsworth Lawyers) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 478 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YUKUN SHEN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.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 24 March 2021 be dismissed.
3.The applicant to pay the first respondent’s costs of an incidental to the proceedings in the fixed amount 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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE ELDERSHAW
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) with respect to an application for a student visa by Mr Yukun Shen, born 15 April 1991. Mr Shen is a citizen of the People's Republic of China.
On 13 August 2019, Mr Shen made an application to the first respondent (Minister) for a Student (subclass 500) visa. That application was determined by a delegate of the first respondent (Delegate) on 16 September 2019 and was refused.
On 2 October 2019, the applicant made an application to the Tribunal, as it was then known, for a review of the Delegate's decision. The Tribunal affirmed the decision of the Delegate not to grant the applicant’s Student (temporary) (class TU) visa on 5 March 2021.
On 24 March 2021, the applicant filed an application and an affidavit in this Court seeking judicial review of the Tribunal’s decision.
PROCEEDINGS IN THIS COURT
In his application filed on 24 March 2021, the applicant sought review of the decision of the Tribunal made on 5 March 2021 and, according to that application, was also possibly seeking to review the decision of the Minister under the Migration Act 1958 (Cth) (Act), therein referring to the decision of the Delegate made on 16 September 2019.
This Court does not review the decision of the Delegate. The nature of this application is that it is reviewing that of the Tribunal only. The applicant sought the usual writ of mandamus and the setting aside of the Tribunal's decision. In terms of the grounds of application, the applicant sought only one ground, being:
The Tribunal failed to take into account substantially of applicant's explanation to the Tribunal.
At the time of the filing of his application and, indeed, on the front page of the application, the applicant cited an email address which is [email protected].
On 1 April 2021, the Minister filed a response seeking the dismissal of the application and costs. The Minister asserted that no jurisdictional error on part of the Tribunal had been established. The Minister amended that response by a document filed on 28 March 2025, in which the Minister sought to summarily dismiss the application, pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules (Cth) (Rules) and continued to seek costs and other orders. The Minister further expanded upon his grounds of opposition to include that the application had no reasonable prospects of success in circumstances where the applicant was not enrolled in a course of study at the time of the decision.
PROCEDURAL BACKGROUND
On 29 April 2021, the matter came before a registrar of the Court. At that time, the matter was provided with procedural directions and the matter was listed for final hearing. Directions were made for the Minister to file and serve, on or before 17 June 2021, a copy of the Court Book and for the applicant to file, on or before 29 July 2021, any amended application with proper particulars of the grounds of his application, any supplementary Court Book, and written submissions and for the Minister to file and serve written submissions on or before 26 August 2021. The hearing was listed on a date to be fixed, costs were reserved, and liberty was granted to apply.
On 19 August 2021, the applicant filed a notice of address for service in which he stated his email address as [email protected].
On 27 August 2021 the Minister, in accordance with those directions, filed written submissions and a list of authorities.
On 30 October 2024, a registrar made further directions, and I note that the applicant appeared at the directions hearing by telephone. At the directions hearing, the Court noted:
A.The applicant confirmed that they had retained their copy of the court book; and
B.The Minister will email the applicant a copy of the audio recording of the Tribunal hearing.
On 14 January 2025, the matter was listed for final hearing before me on 27 May 2025 at 11:00am in person. Those orders did not identify the Courtroom in which the hearing was to take place nor the registry which was, at that time, unknown.
On 13 February 2025, the registry emailed the parties to advise that the hearing would take place on 27 May 2025 at 10:15am with a change of location, being that of Courtroom 8.2 at 80 William St, Woolloomooloo NSW 2011, which is the Courtroom in which the hearing took place. That email used an address for the applicant of [email protected], which is an email address different from that which appeared at the front of the application.
On 16 May 2025, a solicitor for the Minister emailed Mr Shen at the [email protected] address referring to the listing at 10:15am in Courtroom 8.2 at 80 William Street, Woolloomooloo NSW 2011 and noted:
If you or your representative do not appear at the hearing, we, the First Respondent, will seek that your application be dismissed for non-appearance and ask that a costs order be made against you.
On 21 May 2025, my associate emailed the parties at 4:26pm. She stated that the matter was listed for a face-to-face hearing on 27 May 2025 at 11:00am in Courtroom 8.2 at 80 William Street, Woolloomooloo NSW 2011. My associate also drew the parties' attention to the following matters that will apply at the hearing:
i.Court users should not attend a court registry if they have tested positive to COVID-19 in the last seven days.
ii.Where a matter is listed for final hearing to proceed in person, a party seeking to appear electronically by video or telephone must file a request to attend by electronic communication. Please contact the registry if the parties have any queries in relation to updated, face-to-face, in court protocol.
That email also stated that the Chief Judge has directed that, unless instructed otherwise by the presiding Judge, matters listed for final hearing are to be conducted in person. A copy of the updated face-to-face court protocol was found at a hyperlink contained in the email.
On 26 May 2025 at 2:35pm, an email was received from the applicant from an email address that appears as [email protected], otherwise simplified to be Henry Shen, to my associate, in which Mr Shen wrote the following:
To the associate of her Honour Judge Eldershaw, request for adjournment – SYG478/2021 (Shen v Minister for Immigration and Multicultural Affairs)
I write to respectfully request an adjournment of the hearing listed on Tuesday, 27 2025 at 11am in courtroom 8.2, 80 William Street, Woolloomooloo NSW, before Her Honour Judge Eldershaw.
The reason for this request is that I, the Applicant, have tested positive for COVID-19 within the past 7 days and, in accordance with the Court's protocol, I am unable to attend the Court registry or participate in an in-person hearing.
Given this matter is listed for a final hearing and the Court has directed such matters be conducted in-person unless otherwise ordered, I seek the Court's leave for an adjournment to a later date when I am no longer affected by illness and able to appear in person.
I sincerely apologise for any inconvenience this may cause and respectfully seek the Court's indulgence in the circumstances.
Please do not hesitate to contact me if further information or documentation is required.
Yours faithfully,
On Monday, 26 May 2025 at 6:10pm, my associate emailed the applicant and the Minister's legal representative to advise, in summary, that the hearing would progress on Tuesday, 27 May 2025 at 11:00am by Webex and a link to that Webex meeting was embedded as a hyperlink. A telephone number for joining by telephone was also provided with the access code.
On 27 May 2025, the matter was called at about 11:10am, at which time there was no appearance by the applicant. The matter was stood down for half an hour to enable the applicant to arrive late or otherwise to join the meeting. When the matter was recalled at 11:45am, both physically and over the Webex link, there was no appearance by the applicant.
DOCUMENTS
The Minister asked that the proceedings be dismissed for want of appearance pursuant to r 13.06(1)(c) of the Rules and that costs be awarded in favour of the Minister, fixed in the amount of $5,600.
The Minister relies on the affidavit of service of Mr Kwong-Yu Wong of HWL Ebsworth and the email which has been marked as Exhibit R1 (being a chain of email correspondence between my associate and the parties including the application for an adjournment on 21 May and 26 May 2025).
I have otherwise had regard to the orders made in the proceedings and the filing chronology on the Court file to understand the context in which the case arises.
CONTENTIONS
The Minister contends that the matter ought to be dismissed for want of appearance in circumstances where the applicant was on notice of the listing and where, notwithstanding his application for an adjournment made yesterday by email, in circumstances where he asserted to have tested positive for COVID-19, it was appropriate for the matter to proceed by way of Webex at the final hearing.
CONSIDERATION
I am satisfied that it is appropriate to dismiss the application for want of appearance for the following reasons.
I am satisfied that the applicant was notified of the hearing date by the Court as early as 14 January 2025. By way of email of that date to which I have referred, the hearing was listed for 10:15am that is, 45 minutes earlier than what was ultimately the listing time. I am comforted by that because, if anything, the applicant would be early to attending today's hearing rather than running late. He was advised of the Courtroom and the registry on a number of occasions, a fact which, in a sense, was obviated when the matter was shifted to Webex.
The applicant was further reminded of the listing date and the earlier time by the Minister in an email from Mr Wong on 16 May 2025. He was also alerted to the fact that the application would likely be made for his application to be dismissed if he did not appear and a costs order made against him. The applicant was reminded of the listing date and the updated time of 11:00am on 21 May 2025 by my associate. He clearly knew of the date, the time, and the place in his own email to my associate on 26 May 2025 as he specifically described all of those things in that email.
I am comfortably satisfied that the applicant was emailed to his own email address (bearing in mind the difference between the email address appearing on the front of his application and the henrylovesshanghai@gmail email address), given that the henrylovesshanghai@gmail was the email address emanating yesterday seeking the adjournment. This confirms to me that that is the current email address of the applicant and that is the same email address used by the registry on 12 February 2025, by the Minister on 16 May 2025, by the applicant on 26 May 2025 and by my associate also on 26 May 2025.
I will now turn to the application for an adjournment. An application for an adjournment is to be made in the usual way and potentially at the beginning of the hearing, if there is a reason for so making it. In the email from Mr Shen on 26 May 2025, he said that he had tested positive for COVID-19 in the past seven days. Mr Shen proffered no evidence of that although he does invite the Court to ask for it. Respectfully, it is not the Court's function to seek such evidence as it is for the party to proffer it. The applicant goes on to say, in accordance with the Court's protocol, being the protocol to which my associate referred in the email on 21 May 2025:
I am unable to attend the court registry or participate in an in-person hearing. Given that the matter was listed for final hearing and the court has directed that such matters be conducted in-person unless otherwise ordered, I seek the court's leave for an adjournment to a later date when I am no longer affected by illness and am able to appear in person.
The expression “in-person” appears three times in that sentence. The email from my associate on 21 May 2025 also uses the expression “conducted in person” followed by the parenthetical phrase:
(A copy of the updated face-to-face in-court protocol may be found here)
There is a further reference in that email to an updated face-to-face in court protocol. Nowhere in Mr Shen's email to my associate does he say that he is unable to conduct his proceedings other than in-person, that is, face-to-face. The context of in-person being, in my view, comfortably equated with face-to-face.
The email from my associate on 21 May 2025 identified, that where a matter is listed for final hearing to proceed in-person, a party seeking to appear electronically by video or telephone must file a request to attend by electronic communication.
There is no reason that I can apprehend as to why the applicant did not participate in this morning's proceedings by Webex in the absence of any evidence:
(a)of COVID-19 itself within the past seven days, or
(b)that with the transmission to a Webex link overcoming the court's protocol with respect to face-to-face attendances in circumstances where a person has tested positive for COVID-19 in the past seven days.
The applicant had been emailed the hyperlink for the hearing’s electronic Courtroom and failing that, the opportunity to appear by telephone with a telephone number and access code provided.
Nowhere in the email from Mr Shen of 26 May 2025 does he say that he is unable to do justice to his case by reason of having tested positive for COVID-19 in the past seven days, a proposition that was open to him to express should he have wished to do so in an email that is otherwise crafted in plain, if not sophisticated, English.
Rule 13.06 provides:
13.06 Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.
I have had regard to the entitlement of the applicant to apply under the Rules to set aside an order made today dismissing his application. Whether or not any such application would succeed depends upon an exercise of discretion. I note that relevant considerations to such exercise of discretion includes whether there is an acceptable explanation for the applicant's failure to attend the hearing today and the strength of his case on the review if the order dismissing the review were to be set aside.
For these reasons, I am satisfied that the application should be dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
Next, I turn to the question of costs. The Minister seeks his costs of and incidental to the proceedings, fixed in the sum of $5,600.
I am mindful that, in this jurisdiction, the scale of costs for a court event under the Federal Circuit and Family Court of Australia Migration Costs Scale, in Sch 2 Part 2 of the Rules in the current period would see a proceeding concluded at a final hearing to potentially amount to $8371.30.
The sum sought by the Minister is plainly less than that. I am comfortably satisfied that it is an appropriate sum. I am further satisfied that it is appropriate to fix the sum of costs in the interests of efficiency and ease of facilitation of collection or enforcement of such costs.
FINAL DISPOSITION
For the reasons given, I make the following orders.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 11 July 2025
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