Sidhu v Minister for Immigration and Border Protection (No 2)

[2014] FCA 1078

FEDERAL COURT OF AUSTRALIA

Sidhu v Minister for Immigration and Border Protection (No 2) [2014] FCA 1078

Citation:	Sidhu v Minister for Immigration and Border Protection (No 2) [2014] FCA 1078
Parties:	NARINDER SINGH SIDHU and NARWINDER KAUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	SAD 106 of 2014
Judge:	BESANKO J
Date of judgment:	7 October 2014
Legislation:	Federal Court Rules 2011 (Cth) r 36.75 Migration Regulations 1994 (Cth) reg 1.15C, Schedule 2 cl 485.215
Cases cited:	Sidhu v Minister for Immigration and Border Protection [2014] FCA 938 Sidhu & Anor v Minister of Immigration & Anor [2014] FCCA 1323
Date of hearing:	2, 7 October 2014
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Counsel for the Applicants:	The First Applicant did not appear The Second Applicant appeared in person
Counsel for the First Respondent:	Mr P d'Assumpcao
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 106 of 2014

BETWEEN:

NARINDER SINGH SIDHU
First Applicant

NARWINDER KAUR
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 OCTOBER 2014
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicants’ application under r 36.75(2) of the Federal Court Rules 2011 (Cth) be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 106 of 2014

BETWEEN:

NARINDER SINGH SIDHU
First Applicant

NARWINDER KAUR
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 OCTOBER 2014
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application under r 36.75(2) of the Federal Court Rules 2011 (Cth) (“the Rules”) for an order setting aside an order of dismissal of the applicants’ appeal. The applicants failed to appear on the date and time fixed for the hearing of their appeal, and I made an order under r 36.75(1) dismissing their appeal: Sidhu v Minister for Immigration and Border Protection [2014] FCA 938.

2. The first applicant filed an affidavit with the present application. There is no explanation in that affidavit as to why the applicants, or at least one of them, did not attend Court on the date and time fixed for the hearing of their appeal. There is, in effect, an acknowledgement in the affidavit of the first applicant that he had not satisfied cl 485.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) in that he had not shown that he had competent English within reg 1.15C of the Regulations. The applicants are unable to show any error on the part of the Federal Circuit Court judge (Sidhu & Anor v Minister of Immigration & Anor [2014] FCCA 1323). The judge was undoubtedly correct in concluding that the applicants had not shown any error, let alone jurisdictional error, on the part of the Migration Review Tribunal.

3. The applicants’ application under r 36.75(2) of the Rules must be dismissed. There is no explanation for the failure to appear, but even if there was, there is no prospect of the proposed appeal succeeding.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        8 October 2014