Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCA 1361

FEDERAL COURT OF AUSTRALIA

Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1361  

Appeal from:	Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 713
File number(s):	VID 614 of 2023
Judgment of:	HESPE J
Date of judgment:	20 November 2024
Date of publication of reasons:	25 November 2024
Catchwords:	MIGRATION – application for leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) – where Applicant did not appear at the hearing – application for dismissal made under r 35.33
Legislation:	Federal Court Rules 2011 (Cth) r 35.33
Cases cited:	Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 713
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	14
Date of hearing:	20 November 2024
Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr J Barrington
Solicitor for the First Respondent:	Mills Oakley

ORDERS

VID 614 of 2023

BETWEEN:

LOVEPREET LOVEPREET

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	HESPE J
DATE OF ORDER:	20 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant pay the costs of the First Respondent, to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

1. The Applicant seeks leave to appeal from the orders of the Federal Circuit and Family Court of Australia (Division 2) dismissing his application for review of a decision of a registrar of that Court to summarily dismiss an application for judicial review of a decision of the Second Respondent (Tribunal): Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 713. The Tribunal had affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth).

2. During the hearing on 20 November 2024, the Court made an order dismissing the application for leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) by reason of the Applicant’s non-appearance. The reasons for making that order were explained in open Court and are summarised here.

3. The Applicant’s application for leave included the following (emphasis in original):

   The applicant wants to appear IN PERSON to be heard by the Honourable court. The applicant does not want the matter to be decided on the Audio Video link or on paper.

4. The Applicant was sent an email on 10 September 2024 giving notice of the time and date for the hearing listed at 10.15 am on 20 November 2024.

5. On the evening of 18 November 2024, the Applicant sent an email to the Chambers of Justice Hespe requesting an adjournment due to a medical condition, attaching a letter from Dr Peter Pocock of Sanctuary Lakes Wellness Clinic dated 26 October 2024 in the following terms:

   Mr. Lovepreet is unable work [sic] due to a medical condition from 19/11/2024 to the 26/11/2024.

6. The Minister did not consent to an adjournment.

7. Around midday on 19 November 2024, the Applicant sent a further email to Justice Hespe’s Chambers stating that his neck “start again pain from couple of weeks during I played. I continue go from chiropractors for my treatment but it worst from couple of days [sic]”.  The email attached a further letter from Dr Peter Pocock of Sanctuary Lakes Wellness Clinic dated 18 November 2024 and in the following terms:

   Mr/ Lovepreet is unable work due to a medical condition which has a diagnosis of C5/C6 disc protrusion associated with left brachial neuralgia. It is vital he not work from 19/11/2024 to the 26/11/2024 so he can recover from his injury.

8. That email also attached a copy of clinical notes from Our Medical Home Radiology dated 18 January 2021.  It is noted that the Applicant also relied upon a medical certificate stating that he was unable to attend work from 3 to 8 July 2023 in support of his application in the Federal Circuit and Family Court of Australia for an extension of time in which to file an application for review of the registrar’s decision.

9. Justice Hespe’s Chambers notified the Applicant that given it was not clear from his emails whether or why the Applicant would be unable to attend Court, an adjournment would not be granted but the Applicant would be provided with a Teams link to enable him to attend virtually if he was physically unable to attend Court in person. He was asked to notify the Court if he was intending to appear in person or by the Teams link. No response was received.

10. When the matter was called for hearing on the morning of 20 November 2024, the Applicant did not appear. The matter was called outside the courtroom three times and no response was received. The Applicant did not join the Teams link.

11. The Associate to Justice Hespe called the Applicant’s mobile number and left a message requesting him to join the Teams link or respond by phone or email within 15 minutes. The Court then adjourned for 15 minutes.

12. Upon resuming, the matter was again called outside the courtroom with no response from the Applicant. No email or phone call was received and the Applicant had not joined the Teams link.

13. The Minister applied for summary dismissal pursuant to r 35.33 of the Rules. Pursuant to r 35.33(2), the Applicant may apply for reinstatement. The Applicant would be expected to provide a cogent medical reason why he was unable to attend in person, join the Teams link or respond to the Court’s request for a phone call or email.

14. The Minister is entitled to costs to be taxed if not agreed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.

Associate:

Dated:       25 November 2024