Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 992
•30 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 992
File number(s): MLG 2464 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 30 September 2024 Catchwords: MIGRATION – student (subclass 500) visa – decision of the 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 – application dismissed with costs. Legislation: Migration Regulations 1994 (Cth) cl 500.211(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), 17.05(2)(a)
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of last submission/s: 30 September 2024 Date of hearing: 30 September 2024 Place: Melbourne Advocate for the Applicant: No appearance Advocate for the Respondents: Ms Chan Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2464 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
30 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 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 31 July 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 originating application in this proceeding was filed on 31 July 2019, and seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming the decision of a delegate of the (then) Minister for Immigration and Border Protection (Minister), which was made on 12 September 2017, to refuse the applicant a temporary (Class TU) (Subclass 500) student visa. The applicant is a citizen of India who applied for a visa, the subject of the delegate's refusal, on 12 September 2017. The applicant had initially been granted a student visa (TU573) offshore, on or about 11 July 2014 which was valid until 30 August 2017. The applicant arrived in Australia on 15 July 2014, and he appears to have completed a Certificate IV in Business and studied various other certificate courses in the vocational education sector.
At the time the Minister's delegate considered the applicant's visa application, the applicant was proposing to undertake a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, which, according to the delegate, would have extended the applicant's stay in Australia for over five years. The delegate refused the visa application because the delegate was not satisfied; taking into account the applicant's circumstances in his home country, the potential circumstances in Australia, the value of the proposed courses of education to his future, and his immigration history, as well as some other relevant matters, that the applicant was a genuine temporary entrant. On 15 September 2017, the applicant sought review of the delegate's decision by the Tribunal. On 2 April 2019, the Tribunal invited the applicant, through his migration agent at the time, to provide it with information dealing with, amongst other things, his enrolment in a registered course of study.
The applicant was also asked to indicate whether he would consent to the Tribunal determining the matter without conducting a hearing. The applicant provided the Tribunal with a written response on or about 16 April 2019 in which he consented to the Tribunal to determine the matter without conducting a hearing. The applicant also informed the Tribunal that he did not have a then current confirmation of enrolment in a registered course of study. The Tribunal affirmed the delegate's decision, but for different reasons, namely, the Tribunal was not satisfied that, at the time of its decision, the applicant had been enrolled, or was enrolled in a course of study, and so, he did not satisfy cl 500.211(a) of the Migration Regulations 1994 (Cth).
As I have already noted, the applicant applied for judicial review of the Tribunal's decision on 31 July 2019. He attended a callover hearing before Registrar Cummings on 22 August 2024 by telephone. At the hearing, the Registrar made several orders for the conduct of this matter, including that the application for judicial review would be listed for final hearing in the Melbourne Registry on 30 September 2024 at 10:15 am before me.
The notice of listing for the hearing scheduled for 30 September 2024 was sent to the applicant by email on 2 September 2024. The email address to which that notice was sent is the same email address specified in the applicant's judicial review application as an address for service. It is also the same email address to which the notice of callover, and the subsequent reminder of the callover, were sent to the applicant on 13 August and 20 August 2024 respectively. And as already noted, the applicant attended the callover, which indicates to me that the email address was functioning, that the applicant monitored the email address, and accordingly received that notice. There is no reason to suppose that the subsequent notice of listing for this hearing, sent to the applicant on the same email address a few days later, did not properly notify the applicant of this hearing. But, in any event, the applicant was present in the Court by telephone when Registrar Cummings announced the orders made, which included, as I have indicated, an order that this matter be fixed for hearing on 30 September 2024 at 10:15 am.
An affidavit filed on behalf of the first respondent on 26 September 2024, affirmed by Ms Lean, deposes to the fact that on 26 September 2024, correspondence attaching an unsealed copy of the first respondent’s submissions was sent to the applicant by email to the email address specified as the address for service; being the same email address to which other correspondence, both from the Court and the first respondent, had been previously sent. The correspondence is annexed to the affidavit, and it relevantly informs the applicant that this matter has been listed before me on 30 September 2024 at 10:15 am, that he is required to attend and that if he does not attend, the first respondent may seek orders dismissing the application with costs.
The applicant did not attend the scheduled hearing. His attendance was called outside the Court on two occasions, with no response. There has been no communication with the Court by the applicant seeking an adjournment, nor explaining any delayed attendance. Attempts were made to contact the applicant by telephone, but the call was diverted to voicemail.
The first respondent applied orally for an order dismissing the application for judicial review for 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 described above I am satisfied that the applicant was properly notified of the hearing. I am satisfied the applicant has not attended the hearing, he has not applied for an adjournment, nor provided any explanation for his non-attendance. Therefore, I consider that it is appropriate to make an order that the applicant's application for judicial review be dismissed for non-attendance pursuant to r 13.06(1)(c) of the Rules.
The first respondent also seeks an order for costs, fixed in the sum of $5,000.
Although the matter will be dismissed for non-attendance, it is, in effect, a dismissal at final hearing. This matter was listed for final hearing, and so, effectively, the first respondent has done everything that was required of him to prepare for a final hearing, including the preparation of written submissions. The only missing element was the requirement to make oral submissions.
Nonetheless, given the history of this matter, I am satisfied, particularly as the amount sought is below scale for which provision is made in Sch 2 Part 2 of the Rules, that the first respondent’s costs sought in the amount of $5,000 is appropriate, and I will make an order to that effect.
The applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 30 September 2024
0
0
2