Federal Court of Australia

Shoaib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 548

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application for leave to appeal be dismissed.

2.    The appellant is to pay the costs of the first respondent fixed 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)

ABRAHAM J:

1    On 4 August 2014, the appellant, a citizen of India, arrived in Australia on a student visa. On 29 March 2018, the appellant applied for a Student (Temporary) (Class TU) (subclass 500) visa. On 14 June 2018, a delegate of the first respondent (respondent) refused to grant the visa. The delegate was not satisfied that the appellant met the requirements of cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth), as the delegate was not satisfied that he intended to genuinely stay in Australia temporarily. On 5 July 2018, the appellant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.

2    On 25 November 2019, the Tribunal invited the appellant to provide information, pursuant to s 359(2) of the Migration Act 1958 (Cth), that the appellant was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student, and attached a copy of ‘Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’. After being granted an extension, on 24 January 2020 the appellant provided a completed request for student visa information form, in which he indicated that he consented to the Tribunal determining the review without a hearing. On 20 March 2020, the Tribunal affirmed the decision under review.

3    The Tribunal observed that cl 500.211 required the appellant to be enrolled in a course of study. It noted that the appellant lodged his application for a student visa on 29 March 2018, proposing to study a Diploma of Business from 16 April 2018 to 14 April 2019 and found that this had long passed. There was no evidence to suggest that he was engaged in further studies. In his s 359 response to the question, “Does the main applicant have a current confirmation of enrolment (CoE) in a registered course of study?” the appellant responded “no”. The Tribunal found there was no evidence before it that the appellant was currently enrolled in a registered course of study. On 6 April 2020, the appellant applied for judicial review of the Tribunal’s decision. On 6 June 2020, procedural orders were made for the matter to be listed for a show cause hearing, under r 44.12 of the then in force Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), on a date to be fixed. The appellant was provided with an opportunity to file any amended application and written submissions by 3 September 2020. No submissions were filed by the appellant. The show cause hearing was listed on 3 May 2021. The primary judge dismissed the application and made orders pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.

4    The appellant seeks leave to appeal from that decision as it is interlocutory in nature: see r 44.12(2) of the Federal Circuit Court Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant is unrepresented and did not file any written submissions. The matter was originally listed for hearing on 28 April 2022 at 10.15 am. The appellant was aware of that date. On 26 April 2022, the appellant provided the Registry of this Court with a medical certificate, stating that he was unfit for work/study from and including 27 April 2022 until 30 April 2022.

5    Accordingly, the Court adjourned the hearing to 3 May 2022 at 9.30 am. The appellant was notified of today’s date. The appellant has not attended the hearing. An application has been made by the respondent, pursuant to r 35.33 of the Federal Court Rules 2011 (Cth), that the application be dismissed for failure to attend.

6    The respondent pointed to three matters. First, that notice of today’s hearing was provided to the appellant. Second, in the two years since the proceedings have been on foot, the appellant has taken no steps to progress his matter. By that, I take it to be that he has not filed any written submissions in support of his application. Third, in any event, there is no reason to doubt the decision of the court below.

7    At the hearing, on 3 May 2022, the respondent tendered a letter it had sent by express post to the appellant, dated 25 March 2022. The letter put the appellant on notice of the initial hearing date on 28 April 2022 and foreshadowed that the respondent would seek orders from the Court that the matter be dismissed with costs should he fail to attend the hearing.

8    In support of the application, the respondent also pointed, inter alia, to an email sent by the Court to the appellant dated 29 April 2022 which it said gave him sufficient notice of the adjourned hearing date and time, as well as information to enable him to attend the hearing and an option to attend remotely via audio-visual link.

9    I accept the submissions relied on by the respondent. For completeness, I also note the following matters:

(1)    As the appellant had not responded to emails from the Court, shortly prior to the commencement of the hearing, the Court gave further notice to the appellant by email. The appellant did not respond to that email.

(2)    As noted above, the hearing was conducted in person, with an option to attend remotely via audio-visual link. An unknown caller remotely connected to the hearing via telephone. That caller was asked to identify themselves. They did not do so. I note that the telephone number of the unidentified caller did not match the telephone number noted in the filing details on the appellant’s application for leave to appeal. A request was also made that the appellant, if he was attending remotely, identify himself. No person did so.

(3)    At the hearing, the appellant’s name was called three times outside Court, to which there was no response.

10    I am satisfied that the appellant has had notice of today’s hearing and he has failed to attend. In those circumstances, I order that the proceedings be dismissed. The respondent seeks a lump sum costs order of the amount of $4,000. I make that order as to costs.

Associate:

Dated:    12 May 2022