Kumar v Minister for Immigration and Border Protection
[2014] FCA 1306
•28 November 2014
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration & Border Protection [2014] FCA 1306
Citation: Kumar v Minister for Immigration & Border Protection [2014] FCA 1306 Appeal from: Application for extension of time to file appeal: Kumar v Minister for Immigration and Border Protection & Anor [2014] FCCA 1820 Parties: MANOJ KUMAR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 411 of 2014 Judge: PAGONE J Date of judgment: 28 November 2014 Catchwords: MIGRATION – application for extension of time and leave to appeal from decision of Federal Circuit Court – refusal to grant application for judicial review of decision of Migration Review Tribunal – failure by applicant to appear at a hearing relating to the proposed appeal. Legislation: Federal Court of Australia Act1976 (Cth), s 25(2B)(bb)(ii) Date of hearing: 28 November 2014 Date of last submissions: 28 November 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 4 Counsel for the Applicant: The applicant did not appear Counsel for the Respondents: Mr T Goodwin Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 411 of 2014
BETWEEN: MANOJ KUMAR
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
28 NOVEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act1976 (Cth).
2.The applicant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 411 of 2014
BETWEEN: MANOJ KUMAR
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE:
28 NOVEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
This is the hearing of an application for an extension of time to bring an appeal from a decision of the Federal Circuit Court which had been made on 15 October 2013 dismissing the applicant’s application for judicial review of a decision of the Migration Review Tribunal. The application was made by the applicant on 22 July 2014. The application was in a standard form and gave an address for service of the applicant. The application was accompanied by an affidavit which was made by the applicant and which described his address as being the same as the address for service. That address appears both in print and in handwriting at the foot of the first page. It is not clear who prepared the affidavit for the applicant, but it is a typed document and was witnessed by someone described as a legal practitioner with an address in Box Hill. The matter was called on today at 2:15 pm and there was no appearance for the applicant. He was called outside the court room but there was no response and no appearance. The Minister has therefore applied for the proceeding to be dismissed because of his failure to appear.
On 30 September 2014 a letter was sent to the applicant from the National Appeals Registrar of the Federal Court of Australia. It was sent to him at the address which was shown as the address for service in the documents he had filed, namely, the application and the affidavit. The letter sent to him from the Registrar of this Court was headed “Important Information about your Application Hearing”. It referred specifically to the proceeding by reference to the applicant’s name and it indicated unmistakably the time of the hearing with the date and place, including an estimate of the duration of the hearing.
I was informed by counsel appearing for the Minister that there had been further correspondence from the solicitor for the Minister to the applicant in which these proceedings were referred to. One of them was a letter of 6 October 2014 advising that the appeal had been listed for hearing on this day at 2:15. That letter mistakenly referred to the time for hearing as 2:15 am rather than pm, but it is, I think, a fair inference to draw from the total silence of the applicant and his non-appearance at the hearing that he was not misled as to the time. The solicitor for the Minister also wrote to the applicant on 21 November 2014 at the same address, enclosing copies of submissions and lists of authorities. In all there have been at least three items of correspondence to the applicant at the address he had given for correspondence in respect of this proceeding but there has been no appearance by him or on his behalf.
Section 25(2B)(bb)(ii) of the Federal Court of Australia Act1976 (Cth) permits this court to make an order dismissing an appeal where there has been a failure of an appellant to attend a hearing relating to the appeal. The applicant has sought to institute an appeal and has commenced that process by making this application for leave to extend time. It is, therefore, a proceeding relating to the appeal which he seeks to bring against the Minister. The terms of the section are satisfied because he was not present at the hearing, and in those circumstances it is appropriate that I should make the order dismissing the proceeding and the appeal as sought by the Minister.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 1 December 2014
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