Syu v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1358
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syu v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1358
File number(s): SYG 1477 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 December 2024 Catchwords: MIGRATION – judicial review – decision not to grant a Student (Temporary) (Class TU) visa – dismissal for non-appearance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) r 13.06 Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 9 December 2024 Place: Sydney Counsel for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Solicitor for the Second Respondent: Submitting Appearance save as to Costs ORDERS
SYG 1477 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAO KAI SYU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application is 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).
2.The Applicant pay the First Respondent’s costs fixed in the 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).
REASONS FOR JUDGMENT
Judge Kaur-Bains
By an application filed on 9 June 2020, the applicant seeks judicial review of a decision made by the Tribunal dated 8 May 2020. The Tribunal affirmed a decision of a delegate of the Minister, refusing to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa (visa).
The applicant did not appear at the hearing listed before me today. For that reason, the Minister made an application that the proceedings 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) (Rules). For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a citizen of the Republic of China who arrived in Australia on 10 May 2016 and has remained onshore since arrival. The applicant previously held a Working Holiday visa granted on 29 April 2016 and applied for a second Working Holiday visa granted on 15 February 2017, which expired on 10 May 2018 (CB 63).
On 4 April 2018, the applicant applied for the visa with the Department of Home Affairs (CB 23) to study a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management with Choice Business College, with a completion date of 8 March 2020 (CB 9). The applicant also provided a form to the delegate correcting incorrect information in his visa application. The incorrect information was the visa type he had previously been provided. The applicant rectified tourist visa to working holiday visa (CB 24).
On 21 June 2018, a delegate requested further information from the applicant (CB 51). No response was received from the applicant.
On 27 July 2018 a delegate of the Minister refused to grant the visa. This was on the basis the delegate was not satisfied clause 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations) had been met, being that the applicant intended genuinely to stay in Australia temporarily (CB 61).
On 17 August 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 66). On 2 March 2020, the applicant was sent an invitation by the Tribunal to provide more information, concerning the requirements he be both enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 77). No response was received from the applicant.
RELEVANT LAW
Rule 13.06(1)(c) of the Rules 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:
…
(c) if the absent party is an applicant – dismiss the application;
…
PROCEDURAL HISTORY
On 23 July 2020, Registrar Cridland issued standard timetabling orders in this matter for a hearing date to be advised to the parties at a future date. On 25 March 2021, Registrar Van Der Westhuizen made additional timetabling orders, including that the applicant on or before 22 April 2021, file and serve any amended application with proper particulars. The applicant has not filed an amended application or any additional material. At the Callover on 24 September 2024, both parties appeared by telephone including the applicant, assisted by a Mandarin interpreter. Registrar Chapman made further timetabling orders including that the applicant file and serve at least 28 days before the hearing any amended application with proper particulars, written submissions and any affidavit evidence. No amended application, written submissions or evidence have been filed by the applicant.
On 2 December 2024, the Minister filed an Affidavit of Service affirmed on the same date, evidencing service of the following:
(a)On 1 September 2020, a sealed copy of the Court Book to the applicant’s nominated email and postal address as noted in the application for review as the service for address and as noted in his supporting affidavit.
(b)On 9 October 2024, an email to the nominated address forwarding the Notice of Listing from the Court of same date, and informing the applicant that if he did not appear then the Minister would seek an order that the application be dismissed for non appearance and seek costs.
(c)On 25 September 2024, a further sealed copy of the Court Book to the applicant’s nominated email and postal address as the address for service and as noted in his supporting affidavit.
(d)On 25 November 2024, a sealed copy of the Minister’s written submissions to the applicant’s nominated email and postal address as the address for service and as noted in his supporting affidavit.
The Court sent a number of emails to the applicant’s nominated email address regarding the hearing as follows:
(a)On 9 October 2024, a Notice of Listing detailing the date, time and location of the hearing.
(b)On 5 November 2024, an email confirming the date, time and location of the hearing, along with a request that the applicant notify the Court if any specific dialect of interpreter was required at the hearing.
(c)On 2 December 2024, an email confirming the date, time and location of the hearing, noting that the applicant had not responded to the email dated 5 November 2024 and further requesting that the applicant notify the Court if any specific dialect of interpreter was required at the hearing.
(d)On 3 December 2024, an email confirming the date, time and location of the hearing, requesting that the applicant contact the Court regarding the provision of an interpreter, and requesting that the Minister contact the applicant by phone and email to ascertain whether the applicant intended to appear at the hearing or whether he intended to discontinue the proceedings.
By email dated 5 December 2024 from the Minister’s solicitor, the Court was informed the Minister’s solicitor had attempted to contact the applicant by telephone and had left a voice message in Mandarin.
At 10:15am of the morning of the hearing, there was no appearance by or on behalf of the applicant in Court. At 10:18am the matter was again called 3 times outside of the Courtroom, with no appearance from the applicant.
CONSIDERATION
In light of the matters referred to in [9] to [13] of this judgment, I am satisfied the applicant had sufficient notice of the Hearing. Therefore, the proceedings are dismissed pursuant to r 13.06(1)(c) of the Rules.
COSTS
The Minister made an application that the applicant pay the Minister’s costs fixed in the amount of $5,600. I am satisfied this is an appropriate amount in the circumstances and order the applicant pay the Minister’s costs fixed in the amount of $5,600.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 December 2024
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