Kaur v Minister for Immigration and Border Protection
[2015] FCA 489
•20 May 2015
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2015] FCA 489
Citation: Kaur v Minister for Immigration and Border Protection [2015] FCA 489 Appeal from: Kaur & Anor v Minister for Immigration & Anor [2015] FCCA 296 Parties: RANJIT KAUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
SARBJIT SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File numbers: SAD 39 of 2015
SAD 40 of 2015Judge: BESANKO J Date of judgment: 20 May 2015 Legislation: Federal Circuit Court Rules 2001 (Cth) r 16.01
Federal Court of Australia Rules 2011 (Cth) r 36.75Date of hearing: 19 May 2015 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Appellants: The Appellants did not appear Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 39 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RANJIT KAUR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
20 MAY 2015
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to Rule 36.75 of the Federal Court Rules 2011 (Cth).
2.The appellant pay the first respondent’s costs fixed in the amount of $6,439.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 40 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SARBJIT SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
20 MAY 2015
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to Rule 36.75 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 39 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RANJIT KAUR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 40 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SARBJIT SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
20 MAY 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
There are two appeals before the Court: Ranjit Kaur v Minister for Immigration and Border Protection & Anor (SAD 39 of 2015); Sarbjit Singh v Minister for Immigration and Border Protection & Anor (SAD 40 of 2015).
On 20 October 2011, Ms Ranjit Kaur applied for a Student (Temporary) (Class TU) subclass 572 (Vocational Education and Training Sector) visa. Mr Sarbjit Singh, who, at the time, was the husband of Ms Kaur, was included on the application. The delegate declined the application and the appellants sought review by the Migration Review Tribunal (“the Tribunal”), which, on 5 May 2014, affirmed the delegate’s decision. The appellants then made a joint application for judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia on 21 May 2014. On 5 February 2015, the Federal Circuit Court of Australia made an order that the appellants’ application be dismissed pursuant to r 16.01 of the Federal Circuit Court Rules 2001 (Cth) (Kaur & Anor v Minister for Immigration & Anor [2015] FCCA 296). The appellants lodged separate notices of appeal from the order made by the Federal Circuit of Australia on 3 March 2015 and 4 March 2015 respectively.
Directions hearings were held in the appeals before a Registrar of the Court on 4 March 2015 and 5 March 2015. At those hearings, orders were made that the appeals be listed for hearing on a date to be fixed during the sitting period 4 to 29 May 2015 unless the Court advised that the appeal would be heard on a different date. Orders were also made addressing the appeal book and the filing and serving of submissions.
The Minister for Immigration and Border Protection filed a notice of address for service in the appeals on 12 March 2015, and the Tribunal, the second respondent, filed a submitting notice on the same day.
By notice dated 31 March 2015, the parties were advised that the appeals had been set down for hearing before me on Tuesday, 19 May 2015 at 10.15 am.
On 8 May 2015, the first respondent filed an outline of submissions. The appellants have not filed an outline of submissions.
On 14 May 2015, the first respondent filed an affidavit sworn by Ms Claire Stokes on the same date. Ms Stokes is a solicitor employed by the Australian Government Solicitor who has care and conduct of this proceeding on behalf of the first respondent. Ms Stokes deposed that she had been informed by a legal officer in the Litigation Branch of the Department of Immigration and Border Protection (“the Department”) that, as at 14 May 2015, the Department’s records indicated that the appellants had departed from Australia on 8 May 2015. Ms Stokes was further informed that the appellants’ respective bridging visas would allow them to re-enter Australia up to and including 20 May 2015.
Neither of the appellants appeared on 19 May 2015. Counsel for the first respondent told the Court that the Department’s records as at the morning of 19 May 2015 indicated that the appellants had not returned to Australia.
The first respondent invited the Court to dismiss the appeals pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”). This rule provides that if a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that, if the absent party is the appellant, the appeal be dismissed. Counsel for the first respondent noted that, if an order is made dismissing the appeals, the appellants have the right under r 36.75(2) of the Rules to apply to the Court for an order setting aside or varying the order.
The failure of the appellants to appear engaged the provisions of r 36.75 of the Rules. In my opinion, it is an appropriate case to make an order that the appeals be dismissed. The appellants have failed to appear without an explanation. In addition, I note that the Department’s records indicate that the appellants have left Australia and, under the conditions of their respective bridging visas, are not permitted to re-enter Australia after 20 May 2015.
I will make an order that both of the appeals be dismissed pursuant to r 36.75 of the Rules. The first respondent also made an application for an order for costs fixed in the amount of $6,439 in one of the appeals, given the appeals were dealt with together. I consider this to be appropriate and will also make an order that in the appeal involving Ms Ranjit Kaur, the appellant pay the first respondent’s costs fixed in the amount of $6,439.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 20 May 2015
0