Teixeira v Minister for Immigration and Citizenship
[2025] FedCFamC2G 794
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Teixeira v Minister for Immigration and Citizenship [2025] FedCFamC2G 794
File number(s): SYG 1024 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 29 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered Legislation: Migration Act 1958 (Cth) ss 65, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c), 17.05
Migration Regulations 1994 (Cth) cl 500.217 of Sch 2
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 26 May 2025 Place: Parramatta Applicant: No appearance Solicitor for the Respondents: Ms A Wilford of Sparke Helmore Lawyers ORDERS
SYG 1024 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALYSSON CAMPOS TEIXEIRA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.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).
3.The applicant pay the first respondent’s costs in the sum of $6,500.
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 ZIPSER
INTRODUCTION
On 5 June 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 May 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Act.
The applicant did not attend the hearing in this Court on 26 May 2025. For the reasons that follow, 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) (Rules).
FACTUAL BACKGROUND
In September 2018, the applicant, a citizen of Brazil, arrived in Australia on a visitor visa.
On 3 December 2018, the applicant applied for a subclass 500 student visa.
On 15 May 2019, a delegate of the first respondent made a decision refusing to grant the applicant the visa on the basis that he did not satisfy cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth). He did not satisfy cl 500.217 because the delegate found that the applicant gave a bogus document in relation to his visitor visa application, and accordingly did not satisfy public interest criterion 4020.
On 5 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 25 January 2021, the Tribunal invited the applicant to attend a hearing on 16 February 2021 which was subsequently postponed to 12 March 2021.
On 12 March 2021, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his representative and a Portuguese interpreter.
On 5 May 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 26 May 2025
On 5 June 2021, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision.
On 21 September 2021, the applicant filed an amended application prepared by the applicant’s lawyer (Applicant’s Lawyer) which contained five grounds.
On 1 July 2021, a registrar made orders that, upon the matter being listed for hearing, the applicant file and serve a written submission at least 28 days prior to the hearing.
On 7 April 2025, the registry of the Court notified the parties that the matter was listed for hearing at 10:15 am on 26 May 2025. The notification included the place of the hearing.
On 2 May 2025, a notice of withdrawal of lawyer, prepared by the Applicant’s Lawyer, was accepted for filing (Notice of Withdrawal). According to information in the Notice of Withdrawal, the Applicant’s Lawyer informed the applicant on about 16 April 2025:
(a)that he intended to withdraw as the applicant’s lawyer; and
(b)of the date, time and place of the hearing on 26 May 2025.
The Notice of Withdrawal included the applicant’s last known email address (Applicant’s Email Address) and mobile phone number (Applicant’s Phone Number), which were the same as the applicant’s email address and phone number in materials before the Tribunal.
On 20 May 2025, my chambers sent an email to the parties, including to the applicant at the Applicant’s Email Address, reminding them of the date, time and place of the hearing.
Prior to the hearing on 26 May 2025, the applicant did not file a written submission.
Hearing on 26 May 2025
The hearing on 26 May 2025 commenced at 10:20 am and concluded shortly after 10:40 am. The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing. Around 10:15 am my associate phoned the applicant on the Applicant’s Phone Number. The applicant did not answer the call.
Annabelle Wilford from Sparke Helmore Lawyers appeared for the first respondent. She requested that the application be dismissed under r 13.06(1)(c) of the Rules. She tendered an email from her office to the applicant dated 23 May 2025 informing him of the date, time and place of the hearing and that, if he did not attend the hearing, the first respondent would seek an order that his matter be dismissed for non-appearance.
Based on materials referred to above, I am satisfied the applicant was aware of the date, time and place of the hearing on 26 May 2025. For this reason, at the hearing I agreed to the first respondent’s request to dismiss the matter under r 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 26 May 2025 and he is aggrieved that the proceeding was dismissed in his absence, pursuant to r 17.05 of the Rules, he may apply to the Court to set aside the dismissal order. If the applicant files an application under r 17.05, he should file an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 26 May 2025. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse by the applicant of the process of this Court.
If the applicant is genuinely aggrieved that the proceeding was dismissed in his absence and he files an application under rule 17.05:
(a)He should also file and serve a written submission which seeks to identify a jurisdictional error in the Tribunal’s decision. If the Court is not persuaded there is a jurisdictional error in the Tribunal’s decision, there may be no utility in re-instating the proceeding.
(b)The Court will endeavour to list the application promptly for hearing. The applicant must attend the hearing.
COSTS
Ms Wilford sought an order that the applicant pay the first respondent’s costs in the amount of $6,500 which was less than the first respondent’s solicitor/client costs. This amount appears fair and reasonable. It is appropriate to make an order in this amount.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 29 May 2025
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