Federal Circuit and Family Court of Australia
(DIVISION 2)

Wadhwa v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1401 
File number(s):	MLG 939 of 2019	
		
Judgment of:	JUDGE CUTHBERTSON	
		
Date of judgment:	13 December 2024	
		
Catchwords:	MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application 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) 	
		
Legislation:	Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)	
		
Division:	Division 2 General Federal Law	
		
Number of paragraphs:	15	
		
Date of last submission/s:	13 December 2024 	
		
Date of hearing:	13 December 2024 	
		
Applicant:	No appearance	
		
Counsel for the First Respondent:	Ms S. Ward	
		
Solicitor for the First Respondent:	Australian Government Solicitor	
		
Second Respondent:	Submitting appearance, save as to costs	

ORDERS
	MLG 939 of 2019	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	KULDEEP SINGH WADHWA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent

order made by:	JUDGE CUTHBERTSON	
DATE OF ORDER:	13 DECEMBER 2024	

THE COURT ORDERS THAT:
1.	The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.	The name of the second respondent be amended to “Administrative Review Tribunal”.
3.	The application filed on 1 April 2019 by the applicant 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).
AND THE COURT NOTES THAT:
A.	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
(Revised from transcript)
JUDGE CUTHBERTSON
Introduction
1	This matter was listed for a hearing before the Court at 10:00am on 13 December 2024. When the matter commenced, there was no appearance by or on behalf of the applicant. The first respondent’s (Minister) representative sought dismissal of the application for non-appearance. 
2	In the circumstances the Court made the following orders:
1. 	The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2. 	The name of the second respondent be amended to “Administrative Review Tribunal”.
3. 	The application filed on 1 April 2019 by the applicant 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).
4. 	The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $5,400.00.
3	These reasons explain why the Court dismissed the matter for non-appearance 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).
BACKGROUND 
4	The applicant, a citizen of India, first arrived in Australia on 30 November 2014 as the holder of a student visa obtained offshore. That visa was valid until 23 May 2017. On 18 May 2017, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa for the purpose of undertaking a program of vocational courses in automotive mechanics, culminating in a Diploma of Automotive Technology. The visa application was refused by a delegate of the first respondent on 14 August 2017 on the basis they were not satisfied the applicant was a genuine temporary entrant as required by cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).  
5	The applicant applied to the Administrative Appeals Tribunal for merits review of the delegate's decision on 31 August 2017. On 14 March 2019, the Tribunal affirmed the delegate's decision. The applicant then filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of the tribunal's decision on 1 April 2019.  
6	The procedural background relevant to this application is as follows. The applicant's application for judicial review was filed on 1 April 2019.  That originating application together with the supporting affidavit provided contact details for the applicant, including the email address kuldeep.feroke@gmail.com. 
7	On 3 July 2024, the parties to this application were sent a notice of listing for callover which was to occur on 17 July 2024 at 10:00am. That email was sent to the applicant at his email address. Ultimately, that callover was conducted on 17 July 2024. The applicant attended that callover by telephone and orders were made readying the matter for final hearing. Those orders indicated that the matter would be listed for a final hearing at a date and time to be advised.  
8	The matter was allocated to me in October 2024. On 21 October 2024, the parties were emailed a notice of listing of the matter for final hearing. That notice was emailed to the applicant at his email address for service. It specified that the matter was listed for final hearing before me on Friday, 13 December 2024, at 10:00am. It indicated the mode of hearing was in person and the place of that hearing was the Federal Circuit and Family Court of Australia, the Commonwealth Law Courts building at 305 Williams Street in Melbourne, Victoria. In accordance with my chambers’ practice, emails were sent to the parties reminding them of the hearing date on 3 December 2024. That email was sent to the applicant at his email address for service. Information contained in that email included links to the Court's videos that have been developed to explain the Court's jurisdiction and what to expect during the course of a hearing.  
9	The Minister has read into evidence two affidavits that it has filed in respect of the matter. The first of those affidavits is that of Chelsea Clarice Doyle which was affirmed on 15 July 2024.  It has been admitted into evidence and marked ‘R1’. That affidavit sets out information that has been obtained from the Department of Home Affairs database, which is called the Integrated Client Services Environment (ICSE). It sets out that the applicant departed Australia on 7 February 2020 and has not returned to Australia since then. It also sets out that he previously held a bridging visa which ceased on 27 March 2020. The screenshots of the ICSE database indicates that the applicant remains offshore. Also, the information from the department's records also indicates the applicant has not been granted any further visa and is not currently the holder of a visa which would allow him to return lawfully to Australia.
10	The Minister also relied on the affidavit of Sophie Alexandra Ward affirmed on 11 December 2024, which was read into evidence and marked ‘R2’. That affidavit sets out the efforts that have been made by the first respondent to serve the applicant with copies of the Court Book and the Minister's submissions. In addition, on 6 December 2024, the affidavit also attaches an email that was sent to the applicant by Ms Ward on 6 December 2024. I note it was sent to his email address for service. That email states the following:
I refer to the hearing listed in your matter on Friday 13 December 2024 at 10:00am Melbourne time.  
The email from the Court below confirms that your hearing will take place in person in Melbourne.
Department of Home Affairs records indicate that you departed Australia in February 2020 and remain offshore with no right of return.  
If you wish to attend your hearing from overseas you will need to email the Court at Associate.JudgeCuthbertson@fcfcoa.gov.au and ask the Court for permission to attend via Microsoft Teams.  You are welcome to note that the Minister consents to you appearing in that manner.  Please ensure to copy in my email address to any email you send to the Court.  
If you do not attend the hearing, the Minister will ask the Court to dismiss your matter and ask the Court to make an order for costs against you.
If your circumstances have changed and you do not want to continue with your hearing, you should file a notice of discontinuance with the Court.  This will have the effect of ending your matter.  The Minister may still ask the Court to make an order about costs.  You can find the form here - https://www.fcfcoa.gov.au/forms/notice-discontinuance
Please contact me if you have any questions.
11	Ms Ward deposes in the affidavit that at the time of affirming it, that is, on 11 December 2024, she had not received a response to the email that I have just read out that was sent to the applicant's email address. The present time is 10.22am. The applicant is not present in the Court precinct, so I have had his name called out three times. I also record that my chambers has not received any request from the applicant to appear remotely despite the invitation provided on behalf of the Minister indicating that any such application would be consented to.  In those circumstances, I am satisfied the applicant was notified of today's hearing date by the Court at his nominated email address for service.  
12	I am also satisfied that my chambers have reminded the applicant of that listing. I am further satisfied that the Minister has also provided a reminder to the applicant of today's hearing date and the consequence of not attending. He has been given an opportunity to attend remotely if he wished to proceed with his application, although he is currently offshore. I note that Ms Ward advises that when the applicant attended the callover he indicated an intention to proceed with his hearing. Unfortunately, there has been no contact from him since that time to indicate that is in fact his intention.  
13	I am satisfied the non-attendance has occurred in circumstances where the applicant was put notice of the consequences of the failure to appear today. In those circumstances, I agree that this is a matter where it is appropriate to dismiss the proceedings pursuant to r 13.06(1)(c) of the Rules consequent upon the non-appearance of the applicant.  
CONCLUSION
14	The Minister seeks an order that the applicant pay costs fixed in the amount of $5,400.00. First, I am satisfied that costs should follow the event in the circumstances. I am also satisfied the amount sought is reasonable. It represents an amount that is less than the scale of costs provided for a proceeding concluded at final hearing. In the circumstances where no notice has been given by the applicant that he did not intend to proceed with his application, I anticipate the Minister has properly prepared for today's hearing and that that amount sought is an appropriate amount in the circumstances.  
15	I note that written reasons for judgment will be published from my chambers at a later date once the transcript is received.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson.	

Associate:

Dated:	16 December 2024