Brar v Minister for Immigration and Citizenship [2025] FedCFamC2G 1774

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 27 July 2022, the applicant filed an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 23 June 2022. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
2. For the reasons that follow, the application to this Court is dismissed pursuant to r 22.04(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules).

1. On 15 September 2021, the applicant applied for a subclass 500 student visa.
2. On 3 November 2021, a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
3. On 19 November 2021, the applicant applied to the Tribunal for review of the delegate's decision.
4. On 17 May 2022, the Tribunal invited the applicant to attend a hearing by telephone on 23 June 2022**.**
5. On 23 June 2022, the applicant appeared at the hearing before the Tribunal by telephone, to give evidence and present arguments with the assistance of his representative. At the end of the hearing, the Tribunal made an oral decision affirming the delegate's decision not to grant the applicant a student visa.
6. On 30 September 2022, in response to a request by the applicant for a written statement of reasons, the Tribunal sent the applicant a written statement of decision and reasons.

Judicial review application and steps up to hearing on 24 October 2025

1. On 27 July 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision. The application recorded the applicant's email address (Applicant's Email Address) and phone number (Applicant's Phone Number).
2. On 17 October 2022, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars and any additional evidence on which the applicant sought to rely.
3. Following a period of inactivity, on 8 September 2025 the registry of the Court sent an email to the parties, including to the applicant at the Applicant's Email Address, stating that the matter was listed for hearing at 2:15 pm on 24 October 2025. The email included the place of the hearing.
4. On 10 October 2025, the first respondent filed a written submission.
5. On 20 October 2025, my associate 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.
6. At 3:35 pm on 23 October 2025, the applicant sent an email to my chambers stating:

...

I am writing to respectfully request an extension of time for my upcoming hearing before the Federal Court. Due to my current medical condition, I am medically unfit to attend the hearing as scheduled.

A medical certificate from my doctor confirming my condition is attached for your reference. I kindly request that my hearing be postponed to a later date to allow sufficient time for my recovery.

Thank you for your understanding and consideration.

...

1. The email attached a medical certificate which stated:

Mr Jagdeep Singh Brar 10/10/1994 has a medical condition and unfit to continue usual Occupation from 23rd October 2025 to 24th October 2025.

1. At 4:10 pm, my associate sent an email to the applicant, copied to the first respondent's solicitor, stating:

His Honour has reviewed the medical certificate attached to the applicant's email. The certificate does not establish that the applicant is unable to attend or participate in the hearing tomorrow on the basis of his health issues. The hearing will proceed at 2:15 pm.

To accommodate the applicant's health issues, his Honour will permit the applicant (and the Minister's lawyers as well in the circumstances) to appear at the hearing remotely using the following Webex link: ...

1. The applicant did not file or serve any further materials prior to the hearing.

1. The hearing on 24 October 2025 commenced at 2:15 pm and concluded shortly after 2:25 pm. The applicant did not appear at the hearing in person or by video link. The matter was called outside the court room prior to the commencement of the hearing. Around 2:15 pm my associate attempted to phone the applicant on the Applicant's Phone Number. There was a voice message that the phone number was no longer in service.
2. At the hearing, Simon Knuckey from HWL Ebsworth Lawyers appeared for the first respondent. He requested that the application be dismissed under r 22.04(1)(a) of the Rules.
3. Based on materials referred to above, I am satisfied the applicant was aware of the date, time and place of the hearing on 24 October 2025. For this reason, at the hearing I agreed to the first respondent's request to dismiss the application under r 22.04(1)(a) of the Rules.

1. Based on the sequence of events explained above, I am concerned that the applicant, by a date prior to 24 October 2025, had decided that he would not attend the hearing on 24 October 2025 and sought, for an improper reason, to adjourn the hearing.
2. However, if an event genuinely prevented the applicant from attending the hearing on 24 October 2025 and he is aggrieved that the application was dismissed in his absence, pursuant to r 24.04 of the Rules, he may apply to the Court to set aside the dismissal order and thereby re-instate the proceeding. If the applicant files and serves an application under r 24.04, he should file and serve an accompanying affidavit which provides evidence explaining the circumstances which prevented him from attending the hearing on 24 October 2025. In the absence of a satisfactory explanation from the applicant, a question will arise as to whether his conduct involves an abuse by the applicant of the process of this Court.
3. If the applicant is genuinely aggrieved that the application was dismissed in his absence and he files an application under r 24.04:

(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 re-instatement application promptly for hearing. The applicant must attend the hearing.

1. At the conclusion of the hearing, Mr Knuckey sought an order that the applicant pay the first respondent's costs in the sum of $5,600 which was the amount of the first respondent's party/party costs. I consider this amount is reasonable. I will make this order.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.