Kaur v Minister for Immigration and Border Protection
[2015] FCA 484
•19 May 2015
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2015] FCA 484
Citation: Kaur v Minister for Immigration and Border Protection [2015] FCA 484 Appeal from: Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 331 Parties: HARJIT KAUR, JASVIR SINGH and NIMRAT SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: SAD 24 of 2015 Judge: BESANKO J Date of judgment: 19 May 2015 Legislation: Federal Circuit Court Rules 2001 (Cth) 16.01
Federal Court of Australia Rules 2011 (Cth) r 36.75Date of hearing: 18 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 R Prince Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 24 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARJIT KAUR
First AppellantJASVIR SINGH
Second AppellantNIMRAT SINGH
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
19 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 appellants 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 24 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: HARJIT KAUR
First AppellantJASVIR SINGH
Second AppellantNIMRAT SINGH
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
19 MAY 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 16 February 2015, the appellants lodged a notice of appeal from an order made by the Federal Circuit Court of Australia on 5 February 2015. The Federal Circuit Court of Australia made an order that the appellants’ application filed on 20 May 2014 be dismissed pursuant to r 16.01 of the Federal Circuit Court Rules 2001 (Cth) (Kaur & Ors v Minister for Immigration & Anor [2015] FCCA 331). The appellants’ application filed on 20 May 2014 sought to challenge a decision of the Migration Review Tribunal (“the Tribunal”) made on 29 April 2014. The Tribunal decided to affirm the decision of a delegate not to grant Student (Temporary) (Class TU) visas to the appellants. The first appellant (Harjit Kaur) was the primary applicant, and her husband and young child were secondary applicants.
In their notice of appeal, the appellants gave an address in Renmark in the State of South Australia as their address for service.
A directions hearing in the appeal was held before a Registrar of the Court on 18 February 2015. At that hearing, an order was made that the appeal be listed for hearing on a date to be fixed during the sitting period 4 to 29 May 2015 unless the Court advises that the appeal will be heard on a different date. Orders were also made dealing with 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 appeal on 26 February 2015, and the Migration Review Tribunal filed a submitting notice on the same day.
By notice dated 31 March 2015, the parties were advised that the appeal had been set down for hearing before me on Monday, 18 May 2015 at 10.15 am.
On 7 May 2015, the first respondent filed an outline of submissions. The appellants have not filed an outline of submissions. On 12 May 2015, the first appellant filed a notice of address for service giving a different physical address for service, and providing an email address.
On or about 12 May 2015, the appellants sent a letter with two annexures to the Court. The letter was from the first appellant and in it she apologised for the fact that she could not attend the hearing because she was ill. She asked that her hearing be postponed. The first annexure to the letter was a report from a Ms Gai Bynon, psychologist, dated 8 May 2015. The letter referred to the fact that the first appellant was in a very depressed and anxious state. It described her symptoms and stated that the author recommended to the first appellant “that a further four sessions would be necessary for her to significantly reduce her anxiety and depression”, and that she had made further appointments for future sessions. The second annexure was a certificate from a Dr A S More stating that the first appellant was unfit for her normal work from 7 May 2015 to 28 May 2015 inclusive because of “medical illness”.
By letter dated 13 May 2015, my chambers wrote to the parties in the following terms:
The Court has received the enclosed material from the appellants. It appears that the appellants seek an adjournment of the hearing of their appeal which is listed for Monday, 18 May 2015 at 10:15 am.
Please be advised that the Court will consider that application at the outset on Monday, 18 May 2015 at 10:15 am. If the application for an adjournment is granted another date for the hearing of the appeal will be allocated. If the application for the hearing of the appeal to be adjourned is refused, then the hearing of the appeal will immediately proceed as previously advised.
None of the appellants appeared on 18 May 2015 and counsel for the first respondent made an application for an order that the appeal be dismissed. He relied on r 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”) which 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 also advised me that the first respondent had written to the appellants by letter dated 14 May 2015. The letter had been posted to the appellants’ previous physical address, but in addition, it had been sent to the email address shown on the notice of address for service dated 12 May 2015. In the letter, the first respondent advised the first appellant that she should attend the hearing on 18 May 2015 to explain why she needed an adjournment, and that if she failed to attend, the first respondent may apply to have the matter dismissed in her absence. It also advised the appellants that the first respondent has instructed his solicitors to oppose the adjournment on the basis that the medical certificate and letter which they had provided was, in their client’s view, not sufficient to demonstrate that the first appellant was unable to meaningfully participate in the hearing.
The appellants were absent when their appeal was called on for hearing on 18 May 2015 and the provisions of r 36.75 of the Rules were engaged. In my opinion, it is an appropriate case to make an order that the appeal be dismissed. It hardly needs saying that adjournments are not granted on the basis of correspondence sent to the Court and in the absence of hearing from the opposing party. In this case, the report from Ms Bynon does not suggest that the first appellant could not attend Court to explain her difficulties. In any event, it does not suggest that her husband could not attend Court to explain the first appellant’s difficulties. Nor is the medical certificate of any real assistance. It gives no indication of the first appellant’s normal work and, in any event, does not suggest that she is unable to attend Court.
I will make an order that the appeal be dismissed pursuant to r 36.75 of the Rules. I will also order that the appellants 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: 19 May 2015
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