Syed v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1107
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1107
File number(s): MLG 1189 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 15 October 2024 Catchwords: MIGRATION – protection visa – application for judicial review - non-appearance by or on behalf of the applicant - application dismissed. Legislation: Migration Act 1958 (Cth) s 476(1)
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: 11 Date of last submission/s: 15 October 2024 Date of hearing: 15 October 2024 Place: Melbourne Solicitor for the applicant The applicant did not appear Solicitor for the respondents Mr Orchard, Sparke Helmore Lawyers ORDERS
MLG 1189 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAVED HASAN SYED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application for judicial review filed with this Court on 18 April 2019 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit of Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.The applicant pay the first respondent's costs and disbursements of and incidental to these proceedings 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).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 15 October 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 18 April 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made 26 March 2019 pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act). The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a student class TU subclass 500 temporary visa (Visa).
After the application for judicial review was filed, the proceeding was listed for directions before a registrar of this Court on 11 August 2021 and again on 10 April 2024. Orders were made on each occasion directing the applicant to file and serve any amended application and evidence in support, and the applicant has not done so.
When the matter was called on for hearing at 10.15am this morning, there was no appearance by or on behalf of the applicant.
Mr Orchard, who appears on behalf of the Minister, also attempted to contact the applicant by telephone this morning and informed the Court that he was unable to make any contact with him. Mr Orchard also informed the Court that there has been no contact from the applicant since this matter was listed for hearing. A notice of listing was sent by the Court to the applicant and respondent by email on 3 September 2024 noting the time, date and place of this hearing.
At 10.35am, the matter was called three times outside of Court, however the applicant did not appear. Mr Orchard 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 Orchard tendered the Court Book, marked exhibit “R1”, and the affidavit of Christopher Edward Orchard affirmed 14 October 2024, marked exhibit “R2”. In addition, I have been informed by Mr Orchard and observed from the Court file that emails were sent from my chambers to the applicant at his last known email address, “[email protected]”, on 7 and 10 October 2024 notifying him of the time and place of this hearing and advising him that if he did not appear, then an application may be made to have the matter dismissed for non-appearance.
As this Court has acknowledged, a notice of listing was sent to the applicant at his last known email address on 3 September 2024. That email address also appears in the applicant’s originating application and affidavit in support.
At 10.45am, the applicant was still not present in Court. I am satisfied that the applicant was notified of the time, place and date of this hearing by the Court at the email address nominated as his address for service. I am also satisfied that the applicant's non-attendance has occurred in circumstances where the applicant was aware that an appearance in person was required.
In all of the circumstances, I am prepared to dismiss the proceeding pursuant to r 13.06(1)(c) of the Rules.
The solicitor for the Minister has sought the costs of and incidental to his appearance today and the costs of the application in the sum of $5,000.00, which I consider to be reasonable and less than the applicable scale. I propose to make an order to the effect that the applicant pay those costs in that amount.
The solicitor for the Minister also sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. I will make an order to that effect.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 15 October 2024
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