Dangol v Minister for Immigration and Citizenship [2025] FedCFamC2G 2172

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 typographic, clerical or grammatical errors **(**r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. By his oral application, the legal representative for the first respondent seeks that the applicant's application for judicial review be dismissed pursuant to r 22.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) on the basis that the applicant, Mr Baikuntha Dangol, has not appeared at the final hearing.

1. By the application filed on 31 March 2021, the applicant sought judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal) dated 25 February 2021 concerning his partner visa application.
2. The applicant sought that the order of the Tribunal be quashed and an order reinstating his visa at the earliest possible opportunity so that he could proceed with his further studies. The grounds of the application were articulated in an affidavit filed concurrently with the application. That affidavit was, doing the best I can with it, to the effect that he required more time to support his claim for a visa.
3. The Minister relies on an affidavit of service filed on 23 September 2025 by Mr Thomas John Pattinson.

1. The applicant commenced this application for judicial review by filing an application on 31 March 2021. Without traversing the totality of that history, relevantly, on 25 February 2025, the Minister filed an amended response seeking that the application be dismissed and an order for costs.
2. On 26 February 2025, the proceedings were listed before a registrar of this Court by telephone for the purpose of making procedural directions. The Court record demonstrates that the applicant appeared by telephone on his own behalf and on that occasion confirmed that he had received a copy of the courtbook. The application was listed for final hearing on a date to be advised.
3. On 2 July 2025, correspondence from my chambers was sent to the parties advising them that the matter was listed for final hearing before me on Tuesday, 23 September 2025 at 2:15pm in Courtroom 9.1 of Level 9, 80 William Street, Woolloomooloo NSW 2011. That notification was sent by email to the applicant at baikunthadangol@gmail.com.
4. The application filed on 31 March 2021 provides an email address of baikunthadangol@gmail.com. This is the same email address as used in the 2 July 2025 correspondence. The application also states an address for service in Australia of 7 Archibald Street, Granville, NSW 2142.
5. The covering email dated 2 July 2025 attaching the listing notification reiterated that the matter was listed for a face-to-face hearing on Tuesday, 23 September 2025 at 2:15pm in Courtroom 9.1 and further information as to the protocol for face-to-face hearings. That email was sent to the email address of the applicant as stated on his application. I am satisfied that the Court can consider him to have received it, there being no evidence on the Court file of a bounce-back or unsuccessful email transmission.
6. On 4 September 2025, a client services officer of the Federal Court of Australia's New South Wales registry, with which this Court shares its services, sent an email to the applicant at the said email address concerning the payment of a setting-down fee for the final hearing, and requesting that he attend to such payment at his earliest convenience.
7. On 16 September 2025, my associate emailed the parties, using the applicant's same email address, reiterating that the matter was listed for a face-to-face hearing at 2:15pm on 23 September 2025 in Courtroom 9.1 and reproducing the Chief Judge's protocol concerning in-person hearings.
8. On 16 September 2025, the first respondent filed his written submissions and list of authorities.
9. Turning to the affidavit of service, Mr Pattinson deposes that on 9 April 2021, the applicant was provided with notices of address for service and a submitting notice. On 13 April 2021, a solicitor of the same law firm emailed the Minister's Response to the applicant at his same email address. On 7 June 2021, an unsealed copy of the courtbook was provided to the applicant's email address, and then subsequently, on 16 June 2021, a sealed copy of the court book was provided to the applicant. I have already noted that on 25 February 2025 an amended response was filed by the respondent. Paragraph 14 of Mr Pattinson's affidavit is to the effect that such sealed amended response was emailed to the applicant on 26 February 2025.
10. Mr Pattinson further deposes that, on 16 September 2025, an unsealed copy of the respondent's submissions and list of authorities was emailed to the applicant at his email address, and that a sealed version of the same documents was emailed to the applicant at the same email address on 21 September 2025. The Minister's legal representative has specifically taken me to TJP-8 within Mr Pattinson's affidavit, and that appears at page 23 therein. That is a letter from the first respondent's legal representative to the applicant, transmitted by way of the same email address, in which the respondent reiterated that the matter was listed for final hearing at 2:15pm on 23 September 2025 in Courtroom 9.1 as follows:

Please note that you are required to attend the scheduled hearing and, if there is no appearance by you or on your behalf, then the first respondent may seek orders that your application be dismissed with costs.

1. Rule 22.04 of the Rules provides:

22.04 Absence of party at hearing

(1) If a party is absent from a hearing, the Court may:

(i) dismiss the application; or

(ii) adjourn the application; or

(iii) order that the hearing proceed only if specified steps are taken; or

(iv) proceed with the hearing generally or in relation to any claim for relief in the proceeding; or

(i) order that the hearing proceed generally or in relation to a particular aspect of the application; or

(ii) adjourn the hearing; or

(iii) order that the hearing proceed only if specified steps are taken; or

(c) if the absent party has made an interlocutory application or a cross‑claim - dismiss the application or cross‑claim.

(2) If a hearing proceeds in a party's absence and at the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the proceeding.

1. Turning to my consideration, I must first be satisfied that the applicant is fairly on notice of the proceedings, and I am so satisfied. The evidence demonstrates that the applicant, by his application filed in 2021, identified his address for service as being the email address which has been used repeatedly by the registry, my chambers and the Minister's solicitor, as well as a street address in Granville. There is nothing on the Court file to indicate that the applicant has changed those address details, and the Court and the respondent are entitled to rely on them.
2. There is nothing on the Court file nor any evidence brought to my attention by the respondent to indicate that communication to either the email address or the street address has been returned as either unknown at this address or otherwise unable to electronically transmit. In those circumstances, I am satisfied that the correspondence to which I have above referred was transmitted to the applicant pursuant to that email address and has been received by him. I am satisfied that the applicant is on notice of the final hearing being listed before me at 2:15pm on 23 September 2025 in Courtroom 9.1 and at the Sydney Registry. The proceedings were listed for 2:15pm. At 2:43pm, there remained no appearance by the applicant despite the matter being called three times outside of court about 20 minutes prior, and there is no other correspondence from him to indicate that he had otherwise met with misadventure, nor any application for the matter to be adjourned for any reason.
3. In the circumstances, I am satisfied that it is appropriate that the proceedings be dismissed on the basis that the applicant is absent from the hearing. I further note that the applicant's rights to make an application for reinstatement remain unaffected by this decision. In so doing, he would need to provide evidence to me of the reason for his non-appearance, with such reason being satisfactory, and to demonstrate to me that the merits of his case are such that I should entertain the re-litigation of the matter. Those are matters for him should he wish to avail himself. I otherwise dismiss the proceedings.

1. The Minister's legal representative makes an application for costs in his favour fixed in the sum of $6,100. In support of that application, the Minister says that although the matter has been dismissed on the basis of non-appearance of the applicant, it is nevertheless at the stage of proceedings which is the final hearing. He says that the costs proposed are less than the scale amount and reflect fairly the time and cost of preparation of the proceedings, including preparation of Court documents, the courtbook, written submissions, and appearances at administrative listings prior to today and at the hearing itself.
2. I am satisfied that it is appropriate to make an order for costs in favour of the Minister of and incidental to the proceedings fixed in the sum of $6,100. I am satisfied of this because the sum sought is less than the scale amount which applies as of 23 September 2025 being $9,097.93, but also less than the scale amount which has applied through the majority of the pendency of these proceedings, which was $8,371.30. I am satisfied that the Minister has indeed gone to cost in the form of preparing the documents outlined above and at today's appearance. This is a jurisdiction in which costs follow the event. It is appropriate in all the circumstances that I make an order that the applicant pay the first respondent's costs fixed in the sum of $6,100.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.