Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1391
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1391
File number: MLG 1229 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 11 December 2024 Catchwords: MIGRATION – student (subclass 500) 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) sch 2, pt 2, div 1, rr 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth) sch 2, cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 2 December 2024 Date of hearing: 11 December 2024 Place: Melbourne Counsel for the Applicant: No appearance Counsel for the First Respondent: Mr S Crock Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1229 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to Item 10 of Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.
3.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 24 April 2019 be dismissed for non-appearance.
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)Judge Gostencnik
The applicant is a citizen of India who arrived in Australia on 27 August 2014 on a student dependent visa. On 7 September 2017, he applied for a Student (Class TU) (Subclass 500) visa to study a Certificate III in EAL, and a Certificate III in Light Vehicle Mechanical Technology with Barkly International College. After an initial refusal of the visa application by the delegate of the (then) Minister for Immigration and Border Protection, and an initial successful review before the (then) Administrative Appeals Tribunal (Tribunal) resulting in the application being remitted to the delegate, the delegate ultimately refused the applicant's visa application on 19 July 2018, on the basis that the delegate was not satisfied that the applicant intends to genuinely stay temporarily in Australia, as outlined in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth).
The applicant applied to the Tribunal for a review of the delegate's decision, and on 28 March 2019, the Tribunal decided orally to affirm the delegate’s decision, albeit on a different basis, that is the applicant did not, at the time, have a confirmation of enrolment or any other evidence of enrolment in the course of study as required. By his application filed on 24 April 2019, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal's decision, setting out several grounds in support of his application, which for present purposes need not be recounted.
The applicant's application specified, amongst other matters, an email address for service of relevant documents. More recently, the applicant was given a notice of listing to attend a second callover, which was scheduled for 22 May 2024, before a Registrar of the Court, and I note that the notice of listing was dispatched to the email address set out in the applicant’s application. According to an order made by the Registrar on 22 May 2024, the applicant appeared by telephone and was assisted during the callover by a Punjabi interpreter. From that, I discerned that the email address was functioning, and that the applicant received the notice of listing for that callover and responded to it by attending. On 21 October 2024, the migration team of the Court sent the parties, including the applicant, a notice of listing for a final hearing scheduled on 11 December 2024 commencing at 10:00 am before me.
That notice of listing was sent to the applicant at the same email address as is set out in the applicant's application. Upon request by the first respondent, the hearing commencement time was amended to 10:30 am on the same date, and by email correspondence from my associate sent on 4 December 2024, the parties were advised of the changed scheduled time. I note that that email was also sent to the applicant at the same email address as is set out in the applicant's application. The applicant has not attended the scheduled hearing. No communication has been received by either my chambers or the registry, indicating that the applicant is unable to attend.
There is no request for any adjournment, and there is otherwise no explanation for the applicant's failure to attend the scheduled hearing. At the commencement of the hearing, I adjourned for some 20 minutes to enable inquiries to be made about the whereabouts of the applicant. My associate made several phone calls to the applicant without any success. She also sent an email to the applicant and no response has been received. It is in those circumstances that the first respondent applies for dismissal of the application.
The first respondent applies on two bases. First, that the application, in essence, has no reasonable prospect of success and will be dismissed. Secondly, and in the alternative, seeks dismissal for non-attendance. I am not inclined to dismiss on the first basis, but in the circumstances, I am satisfied that the applicant has had adequate notice of the hearing, has failed to attend, has not provided an explanation for non-attendance, nor sought an adjournment. In the circumstances, I consider it is appropriate to dismiss the applicant's judicial review application 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).
The first respondent also seeks an order for costs fixed in the sum of $7,467.00, and although the matter will be dismissed for the applicant's non-attendance, the matter will, in effect, be dismissed at final hearing, and the first respondent has done all that he needs to do to prepare for the hearing, except for making final oral submissions. The sum sought by the first respondent is less than the current amount for which provision is made in Sch 2, Pt 2, Div 1 of the Rules for determination of a matter at final hearing and is fixed at the amount that was applicable under Sch 2 of the corresponding rules at the time the application was made.
Having regard to the nature of the application and the work that has been undertaken, I consider that the amount sought is reasonable and appropriate, and an order requiring the applicant to pay the first respondent's costs in that amount 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 nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 13 December 2024
0
0
2