Sohi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1255
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sohi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1255
File number(s): MLG 3775 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 18 November 2024 Catchwords: MIGRATION – Employer Nomination (Permanent) (Class EN) visa - application for judicial review – non-appearance by or on behalf of the applicant – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
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: 15 Date of last submission/s: 18 November 2024 Date of hearing: 18 November 2024 Place: Melbourne Solicitor for the applicant The applicant did not appear Solicitor for the respondents Mr O’Shannessy, Mills Oakley ORDERS
MLG 3775 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIMRANJEET SINGH SOHI
First Applicant
MANPREET KAUR
Second Applicant
TEGH KAUR SOHI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 12 December 2018 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).
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the amount 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).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 18 November 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor maters to reflect the intention of the court.
By an application filed with this Court on 12 December 2018, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made 8 November 2018, which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa (visa).
The primary reason for not granting the visa was that the employer that sponsored the applicant became insolvent and had been wound up and has since been deregistered.
The applicant is a citizen of India and applied for the visa on 12 December 2016. The visa was refused by the Minister by a decision made 24 January 2018, and then on review, the Tribunal affirmed the decision not to grant the visa.
After the application for judicial review was filed on 12 December 2018, this matter was listed for directions on two occasions. The first occasion on which the matter was listed was on 28 October 2020 where directions were made for the filing and service of the Court Book, any amended application, and further affidavit material. The applicant did not, however, avail himself to that opportunity. The second occasion on which the matter was listed for directions and call over was on 6 March 2024 where directions were made for the filing and service of materials, to which the applicant did not respond.
A notice of listing was sent to the applicant at his last known email address nominated as his address for service on 1 October 2024, noting the time, date and place of the hearing before this Court.
When the matter was called on for hearing at 10.15am this morning, there was no appearance by or on behalf of the applicant.
At 10:35am, the matter was called three times outside of Court, however the applicant did not appear. Mr O’Shannessy sought an order 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) for non-appearance by the applicant. In support of that application, Mr O’Shannessy tendered the Court Book marked exhibit “R1” and the affidavit of Ms Vivienne Beard affirmed 18 November 2024 marked exhibit “R2”. Mr O’Shannessy also tendered the affidavit of service of Ms Jami Klisaris affirmed 18 November 2024 marked exhibit “R3”, which indicates that on 5 November 2024, the solicitors for the Minister sent an email to the applicant serving copies of the Minister’s submissions. There has been no response to the email serving those documents, and I am told by Mr O'Shannessy for the Minister that there has been no contact from the applicant recently or in response to any correspondence from the Minister's solicitors.
I have been informed by Mr O’Shannessy and observed from the Court file that a further email was sent by my Associates to the last known email address of the applicant on 11 November 2024, requesting details of his appearance at today’s hearing, to which there was no response.
The time is now 10.45am and the applicant has not appeared. I am satisfied that the applicant was notified of the time, date and place of this hearing at the address nominated as his last known address for service. I am also satisfied that the applicant's non-appearance has occurred in circumstances where the applicant was aware that an appearance in person was required this day.
In all of the circumstances, I am prepared to dismiss the application pursuant to r 13.06(1)(c) of the Rules
The solicitor for the Minister has sought the costs of and incidental to the proceeding fixed in the amount of $5,000.00, which I consider to be reasonable and less than the applicable scale.
The solicitor for the Minister has also sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
I propose to make orders to that effect.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 26 November 2024
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