Tufekci v Minister for Immigration and Citizenship
[2025] FedCFamC2G 811
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tufekci v Minister for Immigration and Citizenship [2025] FedCFamC2G 811
File number(s): SYG 1633 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 30 May 2025 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal – refusal of adjournment application relying on inadequate medical certificate - dismissal for non-appearance at court hearing – 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 500.212 of Sch 2
Cases cited: Gulati v Minister for Immigration and Border Protection [2017] FCA 255
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 27 May 2025 Place: Parramatta Applicant: No appearance Counsel for the Respondents: Mr B Kaplan Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1633 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHMET OGUZHAN TUFEKCI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
30 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 $8,371.30.
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 27 August 2021, the applicant filed an application, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 23 July 2021. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
The applicant did not attend the hearing in this Court on 27 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
On 18 July 2018, the applicant, a citizen of Turkey, lodged an application for a student visa.
On 25 October 2018, a delegate of the first respondent made a decision refusing to grant the visa on the basis that the applicant did not satisfy the criterion for the grant of that visa in cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth), which required that an applicant for a student visa be “a genuine applicant for entry and stay as a student”.
On 13 November 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 23 March 2021, the applicant attended a hearing before the Tribunal.
On 23 July 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
PROCEEDINGS IN THIS COURT
Steps up to hearing on 27 May 2025
On 27 August 2021, the applicant filed an application in this Court which sought judicial review of the Tribunal’s decision. The application, prepared by a lawyer (Applicant’s Lawyer), contained one ground of review as follows (as written) (Application):
GROUND ONE:
The AAT has failed to have regard to the full integers of the Applicant’s claim.
Particulars
By misdirecting itself about the significance of the medical material with respect to the prognosis that arises on a fair read of the material at paragraph [17] of the decision, the AAT has failed to have regard to the full integers of the Applicant’s claim.
On 16 September 2021, a registrar made procedural orders, including that:
(a)the applicant file and serve any amended application before 9 December 2021; and
(b)upon a final hearing being fixed, the applicant file and serve a written submission 28 days before the hearing.
Following a period of inactivity, on 7 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 27 May 2025.
On 14 May 2025, the Applicant’s Lawyer lodged a notice of intention to withdraw as lawyer dated 14 May 2025. The notice included an email address for the applicant (Applicant’s Email Address), and assuming the Applicant’s Lawyer served the notice on the applicant, informed the applicant of the date, time and place of the hearing.
On 19 May 2025, the Applicant’s Lawyer sent an email to my chambers, copied to the first respondent’s solicitor, which stated in part:
We write to formally notify the Court that our client … has failed to engage with our office and has ceased responding to all recent attempts at communication … Despite repeated follow-ups over a reasonable period, Mr Tufekci has not provided any instructions or clarification as to the ongoing conduct of his matter.
… We further confirm that we no longer hold instructions to act …
On 20 May 2025, my chambers sent emails:
(a)to the Applicant’s Lawyer drawing his attention to the distinction under the court rules between a notice of intention to withdraw as lawyer and a notice of withdrawal as lawyer, and inviting him to file a notice of withdrawal as lawyer; and
(b)to the applicant at the Applicant’s Email Address providing details of the date, time and place of the hearing on 27 May 2025.
Prior to the hearing on 27 May 2025:
(a)The applicant did not file a written submission or additional evidence.
(b)The Applicant’s Lawyer did not file a notice of withdrawal as lawyer.
On the afternoon of 26 May 2025, the applicant sent an email from the Applicant’s Email Address to the first respondent’s solicitor which attached: (Medical Documents)
(a)a medical record which indicated the applicant was admitted to the Emergency Department of Sydney Hospital on 11 May 2025 and discharged on 12 May 2025;
(b)a medical certificate from Dr Gobran, general practitioner, dated 26 May 2025 which certified that the applicant “has a medical condition and will not be fit to attend court for his visa hearing from 26 May 2025 to 28 May 2025 inclusive”; and
(c)a prescription dated 26 May 2025 issued by Dr Gobran to the applicant for fluticasone and salmeterol.
One of the Medical Documents stated “Language spoken at home: English”.
The email did not contain any text.
Hearing on 27 May 2025
The hearing on 27 May 2025 commenced at 10:20 am and concluded shortly after 10:45 am.
The applicant did not appear at the hearing. The matter was called outside the court room prior to the commencement of the hearing.
Bora Kaplan of counsel appeared for the first respondent.
Implied request for adjournment
Mr Kaplan stated that the first respondent treated the email referred to in paragraph 15 above as a request by the applicant for an adjournment of the hearing, despite the fact that:
(a)the email contained no text; and
(b)the applicant only sent the email to the first respondent’s solicitor and did not send the email to the Court.
Mr Kaplan stated that the first respondent opposed the (implied) request for an adjournment because:
(a)the information in the Medical Documents was unsatisfactory and did not establish in a satisfactory manner that the applicant was not fit to attend the hearing on 27 May 2025;
(b)there was a lack of merit in the underlying judicial review application which meant there was no utility in granting an adjournment; and
(c)the adjournment application was made very late in the day.
In relation to the matters advanced by Mr Kaplan:
(a)I agreed the information in the Medical Documents was unsatisfactory. A useful review of Federal Court authorities (NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 79; Singh v Minister for Immigration and Border Protection [2016] FCA 108; AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815; and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75) in Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 25 at [83]-[90] concerning medical evidence provided in support of adjournment applications is consistent with a conclusion that the medical evidence on which the applicant relied was unsatisfactory. To the above Federal Court authorities, one can add comments in Gulati v Minister for Immigration and Border Protection [2017] FCA 255 (Gulati) at [13]-[14] on which Mr Kaplan relied. In addition, despite the fact that the applicant appears to speak English at home (see paragraph 16 above, and the applicant gave evidence at the hearing before the Tribunal on 23 March 2021 without an interpreter), he has not stated, by way of an affidavit, statement or other form of written or oral representation, that he was unable to attend the hearing on 27 May 2025.
(b)Prior to the commencement of the hearing, I briefly reviewed the Tribunal’s decision and the single ground of review in the Application. I agreed with Mr Kaplan that there was a lack of merit in the underlying judicial review application. A lack of merit in an underlying application is a factor which supports the dismissal of an adjournment application: Gulati at [12].
(c)I agree that the adjournment application was made very late in the day.
In the above circumstances, if the applicant requested an adjournment, I refused the application, and the hearing continued.
Application to dismiss proceeding under r 13.06 of the Rules
Mr Kaplan requested that the Application be dismissed under r 13.06(1)(c) of the Rules.
Based on the above materials, I was satisfied that the applicant and the Applicant’s Lawyer were each aware of the date, time and place of the hearing on 27 May 2025. For this reason, I agreed to the first respondent’s request to dismiss the Application under r 13.06(1)(c) of the Rules.
If an event prevented the applicant from attending the hearing on 27 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 27 May 2025, including better medical evidence if he claims that he was unable to attend the hearing on 27 May 2025 for medical reasons. In the absence of a satisfactory explanation from the applicant, a question may arise as to whether his conduct involves an abuse of the process of this Court.
If the applicant is genuinely aggrieved that the proceeding was dismissed in his absence and he decides to file an application under r 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
Mr Kaplan sought an order that the applicant pay the first respondent’s costs in the scale amount of $8,371.30 which was not greater than the first respondent’s solicitor/client costs. This amount appears fair and reasonable. I will make an order in this amount.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 30 May 2025
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