Multani v Minister for Immigration

[2018] FCCA 2031

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULTANI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2031

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal – non-appearance by Applicant.

Legislation:

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

Applicant: MANINDERPAL SINGH MULTANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1529 of 2016

Judgment of: Judge Barnes

Hearing date: 23 July 2018

Delivered at: Sydney

Delivered on: 23 July 2018

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: DLA Piper

ORDERS

1. There being no appearance by the Applicant the application of 17 June 2016 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the Minister’s costs of and incidental to the proceedings fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1529 of 2016

MANINDERPAL SINGH MULTANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The Applicant sought review by application filed on 17 June 2016.  Orders were made at a directions hearing in August 2016 and then at a callover in December 2017, including listing the matter for hearing on 22 June 2018. 

2. The Applicant was quite clearly aware of that initial listing for hearing because he contacted the court by email the day before the hearing seeking an adjournment on the basis of what he described as his medical condition.  Notwithstanding the very general terms in which the medical certificate was expressed, referring to an inability to work for five days due to a medical condition, I granted an adjournment until today, 23 July 2018, but also made various other orders to ensure that any further adjournment application would be supported by proper evidence and that the Applicant understood the consequences of non-appearance. 

3. The orders specified the time, date, place and the court room number for the adjourned hearing.  I ordered that if the Applicant wished to participate in the hearing today by telephone link, he must notify the registry by 16 July 2018 and provide a contact telephone number and that if he did not do so, he must attend the court in person.

4. There was no appearance by the Applicant today either at the time the hearing was listed or now, some 20 minutes later.  There is no evidence to indicate that the Applicant sought a further adjournment or otherwise contacted the court.  The Applicant did not seek to participate by way of telephone link and has not appeared today. 

5. The court notified the Applicant of the orders that were made on the last occasion by letter sent by express post to the last address for service notified by him in a notice of address for service filed in December 2017. 

6. The Minister relied on an affidavit of Kim Mai Nguyen affirmed on 19 July 2018 attesting to service of a letter notifying the Applicant of the adjourned hearing date and place by email and by courier on 16 July 2018.

7. Counsel for the First Respondent drew to my attention a very minor typographical error in this letter, in that it refers to “court 3.2, level 13” instead of “court 13.2, level 13”, but otherwise gives the correct address, date and time.  The matter was called outside the court (on level 13) at both 2.15pm and again at 2.30pm.  On neither occasion did anyone respond.

8. In those circumstances, I am satisfied that the Applicant has been notified of the adjourned hearing date. He is not present today. It is appropriate to make the orders sought by the First Respondent dismissing the matter for non-appearance, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

9. The Minister seeks costs.  It is appropriate that the Applicant pay the Minister's costs in the scale amount in the circumstances of this matter, although in the particular circumstances of this case, where an adjournment was granted notwithstanding some concerns in relation to the adequacy of what was the first medical certificate provided in these proceedings, I am not persuaded that it is appropriate that the Applicant also pay the Minister's costs thrown away on the last occasion.

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

Date: 26 July 2018