Le v Minister for Immigration and Citizenship [2025] FedCFamC2G 828

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. Before the Court on 19 May 2025 was a scheduled hearing of an application for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) which affirmed an earlier decision of a delegate of the (then) Minister for Immigration and Border Protection refusing the applicant a partner visa. The delegate refused the visa application on 21 December 2017 and the delegate's decision was affirmed by the Tribunal's decision made on 29 May 2020. This application for judicial review was filed on 25 June 2020.
2. By way of brief background, the applicant is a citizen of Vietnam, who arrived in Australia on 2 May 2009 as the holder of a student visa. The applicant's student visa ceased operation on 2 March 2011 and she remained as an unlawful non-citizen for several years. On 30 May 2017, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa. At the time that she made her application for the visa the subject of these proceedings, she did not hold any substantive visa.
3. The applicant was required to satisfy the requirements of Sch 3 of the Migration Regulations 1994 (Cth)[1] (Regulations), relevantly, to make an application within 28 days after the substantive visa that she last held had expired. Because of the passage of time between the expiry of her student visa and the application for the visa, the applicant could not satisfy the requirement in cl 3001. Consequently, the applicant had to persuade the delegate, and then the Tribunal, that there were compelling reasons why the criteria in Sch 3, and in particular cls 3001, 3003 and 3004 should not be applied.
4. The delegate was not satisfied that the applicant had shown compelling reasons and refused the application. Similarly, the Tribunal formed the view that it was not satisfied that the applicant had made out compelling reasons and so affirmed the delegate's decision refusing the application for a visa.
5. The applicant applied to this Court for judicial review of the Tribunal's decision and the matter was scheduled for a hearing before me on 19 May 2025 at 10.00 am. Notice of the hearing was sent to the applicant's then solicitors by email from the Court's migration team on 3 April 2025.
6. On 7 May 2025, the applicant's solicitors filed a notice of withdrawal as solicitor and provided information about their former client's, the applicant's, last known residential address, telephone number and email address. Solicitors for the first respondent sent the applicant, by email on 5 May 2025, a copy of the first respondent's outline of submissions for the scheduled hearing. The email was sent to the applicant at the address as notified by the applicant's former solicitors.
7. On 14 May 2025, the first respondent's solicitors sent further correspondence to that email address advising, amongst other things, that if the applicant did not attend the scheduled hearing, the application may be dismissed with costs. Also on 14 May 2025, my associate sent the applicant correspondence advising the applicant at the email address provided by the applicant's former solicitors that the matter had been listed before me on 19 May 2025 at 10.00 am, and on 15 May 2025 the solicitors for the first respondent sent by email to the applicant copies of the materials that the first respondent had filed in the proceeding.
8. Given the material available to me, I am satisfied that the applicant was put on notice of the scheduled hearing. The applicant has not made any contact with my chambers or with the Court's registry, explaining her absence or requesting an adjournment of the proceeding. The applicant did not attend the hearing at the time that it was scheduled to commence. The matter was called outside the Court and thereafter I adjourned the proceeding for approximately 20 or 25 minutes to enable inquiries to be made as to the applicant's whereabouts.
9. During that time, my associate made three telephone calls, each of which was diverted to the voicemail of the applicant. On the first occasion, my associate left a voicemail message indicating the purpose of the call and asking the applicant to urgently contact the Court. My associate also sent the applicant an email to substantially the same effect.
10. On resumption, the matter was again called, and the applicant did not attend. As at the time of delivering my oral decision, the applicant has not made any contact either by email or telephone. I am satisfied that the applicant's non-attendance was not satisfactorily explained.
11. The first respondent has made an oral application pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) for the application to be dismissed for non-appearance, as well as an order as to the first respondent's costs.
12. In the circumstances that I have just outlined, that is, satisfaction of proper notice, the failure by the applicant to make any contact with the Court or to seek an adjournment or otherwise explain her non-attendance, and the attempts by my associate to contact her, I am satisfied that it is appropriate to grant the first respondent's oral application to dismiss the application, and I will do so.
13. The first respondent seeks costs in the sum of $5,900.00, and although the matter will be dismissed today for non-attendance by the applicant, it is, in effect, a dismissal of this matter at final hearing. The matter was listed for final hearing, and so effectively the first respondent has done everything that is required of the first respondent to prepare for final hearing, including the preparation of final submissions. The only aspect which was not dealt with was any oral submissions. The sum sought is less than the amount that would otherwise be awarded pursuant to Pt 2, Div 1, item 3 of Sch 2 of the Rules for determination of the matter at a final hearing.
14. Consequently, taking into account the history of this matter, I am satisfied that it is appropriate to make an order for costs in the sum fixed at $5,900.00, and I will do so. The applicant is, of course, at liberty to apply to have her application reinstated pursuant to r 17.05(2)(a) of the Rules.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik.

[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.