Singh v MIMA

[1998] FCA 1668

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 860  of  1998

BETWEEN:

HARPREET SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	23 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

THE COURT DIRECTS THAT:

1. The respondent notify the applicant of the orders and of the terms of Order 35, Rule 7(2)(a) of the Federal Court Rules.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 860  of  1998

BETWEEN:

HARPREET SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

Respondent

JUDGE:	EMMETT J
DATE:	23 NOVEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   When this matter was listed for directions before me on 2 October 1998, the applicant appeared in person.  On that occasion, I gave directions for the preparation of the proceeding for trial and directed that the matter be listed for hearing on 23 November 1998.

Since the applicant was present in person, I am satisfied that he was aware that the matter had been fixed for trial today.  On 19 November 1998, the Registrar of the Court received a letter purporting to be written by the applicant in which he said as follows:

I would like to inform you that I am the Applicant in the above matter, whose application is pending before the Honourable Federal Court of Australia for favourable consideration. 

I have recently become aware that I have to pay the sitting down fee for the hearing, as well as the other legal costs, in the event that my application is unsuccessful.  In this regard, I would like to mention that I am not in a position to pay those fees as well as any other costs which may be incurred, due to my extreme financial hardship. 

I therefore wish to withdraw my application from the Honourable Federal Court, and I request this be recorded immediately in order to exempt me from the sitting down fees and any other costs. 

I thank you for your assistance in this matter.

A copy of that letter, together with a document purporting to be a Notice of Discontinuance was delivered to the Australian Government Solicitor's Office earlier today.  The Notice of Discontinuance does not appear to be signed by the applicant and it contains an endorsement indicating that it has been filed by somebody called Humayun Kabir.  At present I have no indication that such a document has been filed in the Court.  Even if it had been filed, it probably would not comply with the rules because it does not appear to have been signed by the applicant.

When the matter was called on for hearing this morning, there was no appearance for the applicant and the respondent therefore applied for the proceedings to be dismissed pursuant to Order 32, rule 2(1)(c), which provides that if, when a proceeding is called on for trial, any party is absent, the Court may, if the party absent is an applicant, dismiss the action.

The proceedings before me today are an application for review of a decision of the Immigration Review Tribunal affirming a decision of the Minister that the applicant's visa be cancelled.  Having read the reasons of the Tribunal, there is within the reasons no indication of any error that would justify interfering with the order which was made by the Tribunal. 

In the circumstances, I am prepared to order that the proceedings be dismissed.  The Minister has asked for the costs of the proceedings and I think that there is no reason why the applicant should not pay the Minister's costs.  Accordingly, I order that the proceedings be dismissed with costs.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            23 November 1998

Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 1998
Date of Judgment:	23 November 1998