Kumar v Minister for Immigration

[2016] FCCA 222

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 222

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Non-appearance of applicant at first court date – applicant also failed to appear before Tribunal – 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).

Applicant: SURINDER KUMAR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 44 of 2016

Judgment of: Judge Dowdy

Hearing date: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The Applicant did not appear.

Solicitor for the First Respondent: Ms Dejean of Australian Government Solicitor

The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 11 January 2016 is dismissed pursuant to Rule 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 $1,367 in accordance with Rule 44.15(1) and Part 3 of Schedule 1 to 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 his nominated address for service together with a copy of Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 44 of 2016

SURINDER KUMAR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Surinder Kumar which was filed in this court on 11 January 2016 and given a first time and date for hearing of today, being 5 February 2016.  It is made clear on the filed application that today is the first time and date for hearing, and it is made clear by the application that there should be an appearance by the applicant on that date, being today.  The matter has been called outside Court by my associate, and there is no appearance by Mr Kumar. 

2. The respondent then seeks in that factual situation an order under the Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c), that the application be dismissed with costs in a nominated amount. That provision, of course, provides that if a party to a proceeding is absent from a hearing, including the first court return date, and that absent party is the applicant, the court may dismiss the application. That is, of course, a serious step which would not be taken lightly by any court. However, further in support of the application, Ms Dejean, who appears for the first respondent, tenders some correspondence.

3. She first tenders a letter from herself for the Australian Government Solicitor (AGS) dated 19 January 2016 to the applicant which notes that AGS acts for both respondents, encloses the response on behalf of the first respondent minister and notes that the first return date is on 5 February 2016 at 9:30 am, and accurately identifies the hearing to be taking place in the Lionel Bowen Building.  It gives fair warning to the applicant that if he does not attend, the first respondent may ask for orders dismissing the application and requiring the payment of legal costs.

4. It urged the applicant to obtain legal advice, and it is entirely a very proper document for AGS to send to the applicant.  Then further reliance is placed on an email dated 2 February 2016 to my associate to which the applicant was copied into and noted that the matter was listed for directions today at 9.30 am, and proposed draft consent orders which were attached to the email which were dated today’s date and which set out a proposed timetable. 

5. There is finally, in terms of correspondence, a letter of the same date, 2 February 2016, to the applicant, enclosing certain documents and reminding him that the first court return date is listed at 9:30 am today, at the Lionel Bowen Building, and again advising that if there is a failure to appear, there will be an application for the dismissal of the application with costs, and inviting the applicant to contact the writer, Ms Dejean, if he wished to discuss any matter.

6. So, to sum up, there can be no doubt, it seems to me on the basis of the evidence before me, that the applicant knew that the matter was on for hearing on the first return date today and for directions, and he hasn’t appeared.  In augmentation of the evidence that Ms Dejean has tendered, she refers me to the affidavit of the applicant sworn or affirmed on 11 January 2016, to which he attaches as an annexure the Tribunal’s Statement of Decision and Reasons, and she points me to paragraphs 3 to 5 of that Statement of Decision and Reasons which indicates that the applicant did not appear before the Tribunal.

7. It is recited in paragraph 3 of the said Statement of Decision and Reasons that he had been invited to appear to give evidence and present arguments. That invitation had been sent to the email address provided in connection with the review by the applicant. There was the sending of an SMS message also to the applicant reminding him of the scheduled hearing. He did not appear. The Tribunal was satisfied that the applicant was invited to a hearing to give evidence and present arguments under s.360 of the Migration Act 1958 (Cth), that he had proper notice, he hadn’t appeared, and on that basis, the Tribunal then, to the best of its ability, considered the matter.

8. So all that evidence establishes that there is a history of the applicant not taking up the opportunity to avail himself of various opportunities to present his case.  Finally, Ms Dejean points to the paucity of the grounds set out in the application, and they are really not grounds at all.  The first is that “jurisdictional error” was made in the decision of the Tribunal.  And second, “the applicant has not been given enough time to respond and explain his situation”.

9. In all these circumstances, I consider that I should exercise the power given to the court by r.13.03C(1)(c) to dismiss the application. Ms Dejean does not seek indemnity cost, to which otherwise I might well have thought she was entitled. She restricts her seeking of costs to a sum of $1,367, which seems eminently reasonable to me.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 5 February 2016