Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 603

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).

1. This matter was listed for a final hearing (by video link) before the Court at 2.00pm (AEST) / 12.00pm (AWST) on 23 April 2025. When the matter was called, there was no appearance by or on behalf of the applicant.
2. In the circumstances, the Court made the following orders:
   1. The parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
   2. The name of the first respondent be amended to read "Minister for Immigration and Multicultural Affairs".
   3. The "Administrative Review Tribunal" be substituted as the second respondent in the proceeding.
   4. The application be 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).
   5. The applicant pay the first respondent's costs, fixed in the sum of $5,000.
   6. Written reasons for judgment will be published from Chambers at a later date.
3. These reasons for judgment are those referred to in order 6 above. They 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").

1. Before the Court is an application for judicial review filed in the Melbourne Registry of the then Federal Circuit Court of Australia (the "FCCA") on 13 March 2019 (the "application"). That application was accompanied by an affidavit which was affirmed by the applicant (on 12 March 2019) and filed in the FCCA on 13 March 2019.
2. The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the then Administrative Appeals Tribunal (the "Tribunal") on 20 February 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the "Minister") refusing to grant the applicant a Regional Employer Nomination (Class RN) (Subclass 187) visa.
3. On 19 May 2021, orders were made by Registrar van der Westhuizen of the then FCCA programming the matter to a show cause hearing "on a date to be advised".
4. On 30 December 2024, this Court vacated some of those orders and made further orders programming the matter to a final hearing "on a date to be advised". On 30 December 2024, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 2.00pm (AEST) / 12.00pm (AWST) on 23 April 2025 (by video link) and providing the parties with a copy of the Court's orders.
5. On 11 April 2025, Ms Kristina Petrovski ("Ms Petrovski") from Sparke Helmore (solicitor for the Minister) wrote to my chambers (via email) advising as follows:

Pursuant to the affidavit filed by Minister of today's date, and the in light of the hearing listed for 23 April 2025, the Minister wishes to advise the Court that the applicant is currently offshore.

1. On 17 April 2025, my chambers confirmed to the parties (via email) that the matter remained listed for a final hearing before this Court at 2.00pm (AEST) / 12.00pm (AWST) on 23 April 2025. The parties were also given instructions about how to attend that final hearing by video link (using Microsoft Teams).
2. As outlined above, when the matter came before this Court on 23 April 2025 there was no appearance by or on behalf of the applicant. Ms Petrovski appeared at the hearing on behalf of the Minister (by video link using Microsoft Teams).
3. The Court confirmed that it had before it the correspondence from my Chambers to the parties (referenced above). That correspondence was tendered (together) and referenced as Exhibit 1.
4. The Court also confirmed that it had an affidavit before it of Ms Petrovski (affirmed and filed on 11 April 2025 (the "Petrovski affidavit")). The material annexed to the Petrovski affidavit confirmed service of various documents on the applicant and put him on notice that, should he not appear at the scheduled hearing, the Minister might seek to have the matter dismissed with costs.
5. The Petrovski affidavit also confirmed that the applicant had departed Australia in January 2020, that his visa had ceased and that he did not hold a visa which would permit his re-entry into Australia.
6. The Petrovski affidavit was taken as read and in evidence at the hearing (on 23 April 2025).
7. The Court asked Ms Petrovski how the Minister wished to proceed in the circumstances.
8. Ms Petrovski advised that the Minister sought to have the matter dismissed on the basis of the applicant's non-appearance (pursuant to r 13.06(1)(c) of the Rules). Ms Petrovski also sought the Minister's costs, fixed in the sum of $5,000.
9. Noting the correspondence contained in the Petrovski affidavit and Exhibit 1, the Court was satisfied that the applicant was no longer residing in Australia and that he had been properly notified of the hearing date and time. He was also properly advised of how he could appear at that hearing (by video link using Microsoft Teams) and the possible cost consequences of failing to attend.
10. In relation to the costs order sought on behalf of the Minister, the Court determined that the amount sought was appropriate in the circumstances. The amount was below the amount that the Minister was entitled to seek under the Court's set scale (set out in Division 1 of Part 2 in Schedule 2 of the Rules). Further, the Minister filed detailed written submissions and multiple affidavits in this matter and Ms Petrovski was prepared to make oral submissions as required by the Court.

1. In the circumstances, the Court made orders to dismiss the application for non-appearance and awarded costs to the Minister, as outlined at [2] above.
2. The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.

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