Vedantam v Minister for Immigration and Multicultural Affairs
[2025] FCA 179
•6 March 2025
FEDERAL COURT OF AUSTRALIA
Vedantam v Minister for Immigration and Multicultural Affairs [2025] FCA 179
Appeal from: Vedantam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 723 File number(s): NSD 356 of 2021 Judgment of: DOWLING J Date of judgment: 6 March 2025 Date of publication of reasons: 11 March 2025 Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court – no appearance by appellant – appellant communicated intention to withdraw appeal – no notice of discontinuance filed – appeal dismissed with costs Legislation: Federal Court Act 1976 (Cth) s 25(2B)
Migration Act 1958 (Cth) s 116(1)(b)
Federal Court Rules 2011 (Cth) r 36.75, 40.43, Sch 3 item 15.1(d)
Cases cited: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181
Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 6 March 2025 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent Marcus Vethecan of Clayton Utz Counsel for the Second Respondent The second respondent filed a submitting notice save as to costs ORDERS
NSD 356 of 2021 BETWEEN: NARSIMHA SAI SIDDARTHA VEDANTAM
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DOWLING J
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs in the amount of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)DOWLING J
The appellant, Narsimha Sai Siddartha Vedantam, appeals from a decision of the then Federal Circuit Court of Australia. In that decision the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal: Vedantam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 723. In its decision, the Tribunal affirmed a decision made by the delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant’s Subclass 573 Higher Education Sector Visa (student visa).
The appellant is a citizen of India. He was granted a student visa on 18 June 2016. On 13 August 2018, a delegate of the Minister cancelled that student visa. On 21 August 2018, the appellant applied to the Tribunal for a merits review of the delegate’s decision. On 5 December 2019, the appellant appeared at a Tribunal hearing. On 13 January 2020, the Tribunal affirmed the delegate’s decision to cancel the appellant’s student visa on the basis that the appellant had not been enrolled in a registered course of study since 5 October 2018. Enrolment in a “registered course” was a condition of the appellant’s student visa. Non-compliance with that condition was a ground to cancel the appellants visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth).
On 31 January 2020, the appellant sought judicial review of the Tribunal decision in the Federal Circuit Court. The Federal Circuit Court hearing was held on 8 April 2021 and the appellant’s application was dismissed with costs on that day. The appellant then filed the notice of appeal to this Court on 26 April 2021.
On 19 December 2024, the parties were notified that the appeal was listed for hearing on 6 March 2025.
On 6 January 2025, the appellant wrote to the Court advising that he had left the country due to personal reasons.
On 5 February 2025, my Chambers wrote to the appellant relevantly saying:
Please advise by reply email how long you will be offshore and if you intend to return to Australia and proceed with the hearing of your appeal on 6 March 2025. Be aware that if you do not appear at the hearing there is a risk of the appeal being dismissed in your absence…
The appellant responded by reply email on the same day, 5 February 2025, saying:
Thank you for your email. Hope you are well. I can not comeback into the country as I do not have any travel rights on my visa.
Please note, I would not be coming back and hence would like to withdraw and cancel my application.
On 7 February 2025, my Chambers responded to the appellant inviting him to file a notice of discontinuance of appeal. My Chambers sent further emails requesting an update on 18 February 2025 and 3 March 2025. The appellant did not respond to any of those requests and did not file a notice of discontinuance.
At the hearing, the Minister advised me that there was further correspondence between his solicitors and the appellant. The Minister provided a copy of that correspondence to the Court. By email on 24 February 2025, the Minister asked the appellant whether he intended to file a notice of discontinuance. The appellant responded by email on the same day and confirmed that he intended to “stop [his]… application.” There were further exchanges between the Minister about the notice of discontinuance and the appellant’s obligations to pay the Minister’s costs. The appellant did not file a notice of discontinuance.
The appeal was listed for hearing this morning. The appeal was called outside the courtroom three times. The appellant did not appear. The appellant was also sent a video-conference link in the event that he wished to appear remotely. He did not utilise that link.
Section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) provides that a Federal Court Judge exercising the appellate jurisdiction of the Court may dismiss an appeal because of the failure of an appellant to attend a hearing relating to the appeal. I note also that r 36.75 of the Federal Court Rules 2011 (Cth) allows for an opposing party to apply to the Court to dismiss an appeal if an appellant is absent.
I consider it appropriate to make an order that the appeal be dismissed as a result of the appellant’s failure to attend. First, the appellant has been advised in writing of the date, time, and location of the hearing on the following occasions: 19 December 2024, 5 February 2025 and 5 March 2025. Second, the appellant was advised in writing on 5 February 2025 and 5 March 2025 that his appeal may be dismissed in his absence. Third, the appellant advised on 5 February 2025 that he wanted to “withdraw and cancel” his application and on 24 February 2025 that he intended to “stop [his]… application.”
COSTS
The Minister sought an order for costs of $5,000 pursuant to r 40.43 of the Federal Court Rules 2011 (Cth) which provides for short form bills in migration appeals such as this. That rule relevantly provides that if a migration appeal is dismissed after a hearing, the successful party may claim the costs and disbursements of the appeal in the fixed amount set out at item 15.1(d) of Sch 3 of the Rules. That item provides for an amount of $8,323. The Minister submitted, and I accept, that the Court has a discretion in relation to costs to make a fixed costs order in an amount less than $8,323: see BAX16 v Minister for Immigration and Border Protection [2018] FCA 181. The Minister accepted that I had discretion to order an amount less than that proposed by him.
The Minister outlined the steps taken by him in respect of the matter. Those steps included the provision of advice, correspondence with the appellant, preparation of the appeal book, preparation of written submissions and the list of authorities, communications with the appellant about the discontinuance, and preparing for and attending the hearing. The Minister accepted that this matter was not complex.
In all of the circumstances, I am satisfied that making a costs order in the sum of $4,000 is reasonable and “proportionate to the nature including the complexity of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] and CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855 at [45]. I am satisfied that fixing such an amount is an appropriate exercise of the Court’s discretion to fix an amount of costs.
DISPOSITION
For all of the reasons set out above, the appeal is dismissed with costs fixed in the sum of $4,000.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling. Associate:
Dated: 11 March 2025
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