Kaur v Minister for Immigration

[2013] FCCA 2329

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2329

Catchwords:
MIGRATION – No appearance by the applicant, dismissal pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05, 44.15(1)

Applicant: PARBINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1931 of 2013

Judgment of: Judge Manousaridis

Hearing date: 5 December 2013

Delivered at: Sydney

Delivered on: 5 December 2013

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents: Mr Baird
Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs of and incidental to the application, in the sum of $6,646 in accordance with r.44.15(1) and Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

3. The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

4. The title of the first respondent recorded in the application is amended to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1931 of 2013

PARBINDER KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter was set down for final hearing before me.  Before the matter was called my associate was given to understand that the applicant might not appear at the hearing today.  At my request, my associate telephoned the applicant at 2.25 pm this afternoon.  My associate confirmed that the person that she was speaking to was Parbinder, P-a-r-b-i-n-d-e-r, Kaur, K-a-u-r, the applicant in this proceeding.

2. My associate was informed by the applicant that she had sent a medical certificate and she informed my associate that she was not well.  The applicant informed my associate that she had faxed the medical certificate and a letter to the registry of the Court.  The applicant informed my associate that the applicant had called the Court and a male told her to fax to the Court the medical certificate, together with the letter.

3. My associate asked the applicant to confirm the fax number that she sent the documents to and the applicant said that she had sent the documents to the number [phone] which is, as I understand it, the fax number of the registry.  The applicant informed my associate that she had sent that fax to the registry at that number at 4.05 pm on 2 December 2013.  My associate informed the applicant that it is likely that her application will be dismissed for non-appearance.  After that telephone conversation my associate again made inquiries of the registry to determine whether the registry had received any fax from the applicant attaching a medical certificate or a letter.

4. The person with whom my associate spoke at the registry made inquiries of the personnel who were on fax duty at the time and on the date the applicant said she had sent the medical certificate by fax to the registry and none of those officers could recall their receiving any such document.  There is certainly nothing in the file to suggest that such certificate had been provided and there is nothing that had been communicated to my associate to indicate that a certificate had been filed.

5. In those circumstances there is nothing before the Court on which I could do anything other than proceed on the application made by the lawyer for the Minister to have the matter dismissed for non-appearance.  I am satisfied that the applicant was aware that this matter was on for hearing.  I am also satisfied that the applicant was aware that her non-attendance here would likely result in her application being dismissed. 

6. In these circumstances I propose to make the following orders:

   (1)The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

   (2)The applicant is to pay the first respondent’s costs of and incidental to the application, in the sum of $6,646 in accordance with r.44.15(1) and Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).

   (3)The first respondent is to arrange to have these orders entered and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of r.16.05 of the Federal Circuit Court Rules 2001 (Cth).

   (4)The title of the first respondent recorded in the application is amended to Minister for Immigration and Border Protection.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 5 December 2013