Tahir v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 754
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tahir v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 754
File number: MLG 321 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 16 August 2024 Catchwords: MIGRATION – Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – no appearance by or on behalf of the applicant – no explanation or communication received from 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. Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 16 August 2024 Place: Melbourne Counsel for the Applicant: No appearance by or on behalf of the applicant Solicitor for the First Respondent: Mr A Cunynghame Counsel for the Second Respondent: Filed a submitting appearance Solicitors for the Respondents: Sparke Helmore ORDERS
MLG 321 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALI TAHIR
Applicant
AND: MINISTER FOR IMMIGRATIONAND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”
2.The application filed on 8 February 2019 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.
3.The applicant pay the first respondent’s costs in the sum fixed at $5,000.
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
JUDGE GOSTENCNIK
By application lodged on 2 February 2019, the applicant applied to the Court for judicial review of a decision of the Administrative Appeals Tribunal made on 23 January 2019 which affirmed a decision of the delegate of the then Minister for Home Affairs not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) because the applicant did not meet the criteria in clause 500.214 of Schedule 2 of the Migration Regulations 1994.
On 21 March 2024, by email correspondence, the applicant was advised that the matter had been listed for a Callover before a Judicial Registrar at 2:15 pm on 3 April 2024. The matter was the subject of a Callover before a Judicial Registrar at the time and date specified at which several orders were made, including that the applicant file and serve an amended application, affidavits, supplementary court books and written submissions by 17 April 2024. The applicant appeared by telephone on that day but has not filed any material pursuant to the orders.
On 4 April 2024, sealed orders made by the Judicial Registrar were sent to the applicant by email. The applicant was also advised that the parties will receive email notification once the matter has been set down for a final hearing before a Judge.
Subsequently, by email correspondence from the Court on 1 August 2024, the applicant was sent notification that his application for review had been fixed for final hearing before a Judge of this Court at 10:00 am on Friday, 16 August 2024 and that the mode of hearing would be in person. The various emails, including that which contained the notice of listing, sent from the Court to the applicant were sent to the applicant's email address as set out in his notice of address for service contained in his application.
The hearing commenced on 16 August 2024 at 10:00 am. After calling on the matter, the applicant did not appear. My associate called for the applicant outside and in the vicinity of the court room, but there was no appearance. I stood the matter down for 15 minutes to allow for any late attendance. On resuming the hearing, my associate again called for the applicant outside and in the vicinity of the court room, but the applicant did not appear. There is no indication on the Court's file of any communication having been received from the applicant about his non-attendance or of any application that the hearing scheduled be adjourned or delayed. The applicant has not communicated with the Court about any reason why he might be late attending this hearing. I am satisfied that the applicant was notified of the date, time and mode of the hearing. The Minister applied orally for an order dismissing the applicant’s judicial review application for nonattendance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Court Rules).
In the circumstances, I am satisfied that it is appropriate to dismiss this matter for non-attendance under r 13.03C(1)(c) of the Court Rules, and I do so. The Minister seeks his costs in the sum fixed at $5000. Although the matter has been dismissed for non-appearance, it has been dismissed at the final hearing, and, so effectively, the Minister has done everything he was required to do for a final hearing, apart from making oral submissions at the hearing. Given the history of the matter, I am satisfied that it is appropriate to order the applicant pay the Minister’s costs fixed in the sum of $5000.
The name of the first respondent should also be amended to “Minister for Immigration and Multicultural Affairs”.
I note that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Court Rules.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 19 August 2024
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