Kaur v Minister for Immigration & Border Protection

[2015] FCCA 1416

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1416

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.13.03C(1)(c)

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: KANWALJEET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1079 of 2015

Judgment of: Judge Emmett

Hearing date: 27 May 2015

Date of Last Submission: 27 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitor for the Respondent: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1079 of 2015

KANWALJEET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 20 April 2015, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

2. In support of the first respondent’s application, the first respondent’s solicitor, Ms Given, tendered a letter dated 4 May 2015 addressed to the applicant at her address for service. The letter confirmed the date, time and address and location of today’s directions hearing and further informed the applicant that if she did not attend, that the first respondent would seek to have the matter dismissed with costs.

3. On 25 May 2015, an email was received from the applicant stating that she cannot travel from Brisbane to Sydney due to health and stress problems and requesting a change of hearing date. The applicant attached to that email a psychologist report that refers to her stress, depression and anxiety. The first respondent did not receive a copy of that request from the applicant. However, upon receipt of that request by Chambers, those documents were sent to the first respondent and the first respondent responded that they opposed any adjournment, but would consent to the applicant appearing by way of telephone attendance.

4. The opposition for the adjournment was on the basis that the applicant had made a bare assertion of illness; there is no medical certificate provided to support the applicant’s assertion that she is unfit to travel from Brisbane to Sydney. The applicant commenced her proceeding in Sydney despite living in Brisbane. The applicant does not suggest when, at any stage, she would be well enough to appear.

5. In light of the opposition of the first respondent to the applicant’s request for an adjournment and on the basis of the lateness of the application; the lack of relevant evidence as to any particular reason why the applicant was unable to attend her Court appearance today; and, having regard to the inexplicable course that the applicant took in lodging her application for judicial review in Sydney when she resides in Brisbane, the application for an adjournment was refused.

6. However contact was endeavoured to be made by my Chambers to invite the applicant to appear by telephone. That contact was attempted twice by my chambers to the applicant’s telephone number. I am told that the call rang out. An email was also sent through to the applicant to a similar effect.

7. The initiating application filed on 20 April 2015 clearly has the date, time and location of this morning’s hearing, being at 9.30am today. It is now 10.10am. There has been no further communication received by the applicant. The matter has been called outside on at least two occasions, the most recent being in the last five minutes.

8. In considering whether to make the orders sought by the first respondent, I also have regard to the grounds of the applicant’s application, which are in the following form:

   “I. I WOULD LIKE FEDERAL COURT TO RE-CONSIDER MY COMPELLING REASONS FOR GRANT OF PARTNER VISA. THERE ARE COMPELLING REASONS IN OUR RELATIONSHIP

   2. I AM IN RELATIONSHIP WITH MY CURRENT PARTNER FROM LAST TWO YEARS AND SATISFY SCHEDULE 3 OF MIGRATION REGULATION

   3. I AM HAPPY TO PROVIDE EVIDENCE IN SUPPORT OF MY APPLICATION”

9. Those grounds do not identify any error capable of review by this Court. In the circumstances, the grounds do not disclose an arguable case for the relief claimed and appear to be more in the nature of a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court has no power to consider (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

10. In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate. Accordingly, the proceeding before this Court, commenced by way of application filed on 20 April 2015, is dismissed with costs pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:              2 June 2015