Tang v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 454
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 454
File number: SYG 3703 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 8 June 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 8 June 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Ms J Strugnell Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison ORDERS
SYG 3703 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAH SIEW TANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The application 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).
3.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
4.The applicant pay the first respondent’s costs fixed in the sum of $5,600.
5.Written reasons for judgment to be published from Chambers at a later date.
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 KENDALL:
INTRODUCTION
This matter was listed before the Court for a final hearing at 10.30am on 8 June 2022. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The application 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).
3.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
4. The applicant pay the first respondent’s costs fixed in the sum of $5,600.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Sydney Registry of this Court on 29 November 2017 (the “application”). The application was accompanied by an affidavit that was affirmed by the applicant and filed on 29 November 2017.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 26 October 2017.
On 15 January 2018, orders were made by Registrar Cho in this Court programming the matter to a callover at 9.30am on 12 August 2019.
On 2 July 2019, the parties were notified by the Court that the callover had been adjourned to a date to be fixed.
On 1 November 2021, the parties appeared at a directions hearing before this Court (by telephone). Following the directions hearing, orders were made by this Court providing the parties with an opportunity to file further material and listing the matter for a final hearing on 4 February 2022.
On 15 May 2022, my chambers notified the parties that the matter had been re-listed for a final hearing at 12.30pm (AEST) / 10.30am (AWST) on 8 June 2022. The parties were also advised that the hearing would take place via video link.
On 3 June 2022, the parties were reminded by my chambers of the date, time and location of the hearing and were provided with instructions for attendance by video link using Microsoft Teams.
At 10.48am on 8 June 2022, the matter was called for a final hearing. Mr Strugnell appeared for the Minister and an interpreter was made available (as the applicant had requested, in his review application, that an interpreter be retained). Unfortunately, there was no appearance by or for the applicant. Immediately prior to the hearing being called, my associate attempted to contact the applicant by telephone. The applicant did not respond.
Ms Strugnell took the Court through correspondence from her office to the applicant which related to the service of various documents and which advised the applicant that, in the event that he did not attend the hearing, the Minister would seek to have the matter dismissed, with costs.
That correspondence, together with the correspondence from my Chambers outlined above, was tendered and referenced as Exhibit 1.
The Court asked Ms Strugnell how the Minister wished to proceed in the circumstances.
Ms Strugnell advised that the Minister sought for the application to 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) (the “Rules”). She also sought an order amending the name of the first respondent to read “Minister for Immigration, Citizenship and Multicultural Affairs” and an order for costs, fixed in the sum of $5,600.
Noting the correspondence tendered as exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing. Unfortunately, the applicant did not attend the hearing. He was given ample opportunity to do so. The Court was also of the view that the costs sought by the Minister were appropriate in the circumstances of this case – the Court noting, in particular, the preparation required in drafting the Minister’s written submissions and the work required by Ms Strugnell in preparation for the hearing.
CONCLUSION
In the circumstances, the Court made orders dismissing the matter for non-appearance. The Court also awarded costs to the Minister (as per [2] above).
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 June 2022
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