Kaur v Minister for Immigration and Border Protection
[2019] FCA 1213
•2 August 2019
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2019] FCA 1213
Appeal from: Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 2680 File number: VID 1491 of 2018 Judge: MURPHY J Date of judgment: 2 August 2019 Catchwords: MIGRATION – non-appearance of applicant Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 116
Federal Court Rules 2011 (Cth) r 35.33
Federal Circuit Rules 2001 (Cth) r 44.12
Date of hearing: 2 August 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 6 Counsel for the Applicants: The Applicants did not appear Counsel for the First Respondent: Mr N Wood Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 1491 of 2018 BETWEEN: RANDEEP KAUR
First Applicant
GURPREET SINGH UPPAL
Second Applicant
HARJASHANPREET SINGH UPPAL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
2 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for an extension of time within which to seek leave to appeal be dismissed pursuant to rule 35.33 of the Federal Court Rules 2011 (Cth).
2.The Applicants pay the First Respondent’s costs fixed in the amount of $4,822.52.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT (revised from transcript)
MURPHY J:
In this application the first applicant, Ms Randeep Kaur, seeks an extension of time within which to apply for leave to appeal from an interlocutory judgment of the Federal Circuit Court, and, if the extension is allowed, leave to appeal. The Federal Circuit Court dismissed Ms Kaur’s application for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to cancel her Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth).
The judgment of the Federal Circuit Court was interlocutory, having been delivered following a show cause hearing under r 44.12(1)(a) of the Federal Circuit Rules 2001. Ms Kaur therefore requires leave to appeal (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)) and, because she filed the application for leave to appeal late, she also requires an extension of time.
Ms Kaur filed an application for an extension of time and leave to appeal on 23 November 2018. On 11 December 2018 orders were made requiring her to file written submissions 10 days before the hearing date that was later to be fixed. A referral was made for Ms Kaur to receive pro bono counsel’s advice, which advice was provided in or about April 2019. Pro bono counsel informed Chambers that his duty under the pro bono referral was discharged by the provision of advice.
On 3 May 2019 my Chambers sent an email to Ms Kaur informing her that the application was listed for hearing on 21 May 2019. She responded by email that day seeking an adjournment to allow her sufficient time to engage other counsel. The Minister consented to the adjournment and the case was re-fixed for hearing on 9 July 2019.
At the hearing on 9 July 2019 the applicant sought a further adjournment. She informed the Court that she had borrowed sufficient monies to enable her to engage legal representation, and had an appointment to see a solicitor, but she had not yet done so and was not ready to proceed. She submitted that she was unable to properly represent herself at the hearing. It became apparent in the hearing that she did not have sufficient understanding of the issues in her case to make appropriate submissions. With some reluctance I granted a further adjournment to 2 August 2019.
Less than an hour before the 2 August hearing, Ms Kaur sent an email to Chambers and said that she would not be attending the hearing. When the matter was called on for hearing she did not appear. In the circumstances it is appropriate to make an order to dismiss the application under r 35.33 of the Federal Court Rules 2011 and to order that the applicant pay the first respondent’s costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 5 August 2019
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