SINGH v Minister for Immigration

[2018] FCCA 2124

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2124

Catchwords:
MIGRATION – Partner visa – application for extension of time – application for review of decision by the Administrative Appeals Tribunal – applicant failed to attend hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B(1A)(b), 362B(1E), 477(1), 477(2)

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

Applicant: GURDEV SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2334 of 2016

Judgment of: Judge Kirton

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Melbourne

Delivered on: 3 August 2018

REPRESENTATION

No appearance for the Applicant

Solicitors for the Respondents:  Ms Hillary of DLA Piper Australia

ORDERS

1. Application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant to pay the first respondent’s costs in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2334 of 2016

GURDEV SINGH

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

and

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant applied for a UK Partner (Temporary) and BS Partner (Residence) visa on 22 November 2013 on the grounds of being in a spousal or de facto relationship with an Australian citizen sponsor.

2. The application was refused by a delegate of the first respondent on 1 May 2015.

3. On 12 May 2015 the applicant applied to the Migration Review Tribunal (as it was then called) for a review of the delegate’s decision.

4. On 25 August 2016 the Administrative Appeals Tribunal made a decision to dismiss the review application pursuant to s.362B(1A)(b) of the Migration Act 1958 (Cth) (Act) on the basis of the applicant’s failure to attend the hearing scheduled that day.   

5. The applicant did not seek reinstatement of his application and the Administrative Appeals Tribunal confirmed the dismissal of the application pursuant to s.362B(1E) of the Act on 12 September 2016.

Federal Circuit Court Application

1. This application was filed on 27 October 2016 (Application) seeking judicial review of the administrative appeals decision made pursuant to s.362B(1E) of the Act on 12 September 2016.

2. Pursuant to s.477(1) of the Act the Application needed to be filed within 35 days of the decision of the Administrative Appeals Tribunal. The Application should therefore have been filed by 16 October 2016 and it was consequently 10 days out of time. The applicant sought an extension of time pursuant to s.477(2) of the Act.

3. The grounds of the application for an extension of the time in the Application are stated to be:

   My case officer send me email for hearing but due to my medical issue, I could not check my email address for few weeks.  I attached medical report with this application.  My case officer didn’t call me to informed about it.  That’s why I am looking extension to lodge my valid application.

4. The grounds for the application for judicial review are stated to be:

   Due to some serious medical issue, I could not check my email address.  My case officer dismis (sic) my application without give me a chance to prove my relationship.  If I would get chance to provide evidence, I could provide everything at the day.  I have strong evidence to prove my application.

5. The first respondent opposed the making of all orders sought in the Application.  The second respondent appeared and submitted to any order of the court, save as to cost.

6. The hearing of the application for an extension of time and substantive application were listed for hearing on 1 August 2018 at 10.30 am.  The applicant did not attend the hearing.  The applicant was called outside the courtroom at 10.40 am and did not respond to the call.

7. The solicitor for the first respondent informed the court that at 10.35 am she had called the mobile telephone number that the applicant had provided in his address for service, however the number was disconnected. 

8. The solicitor for the first respondent provided to the court an affidavit of Breanna Gabrielle Garreffa, legal assistant, affirmed on 31 July 2018.  The affidavit confirmed that a letter reminding the applicant of the hearing date had been delivered to the applicant’s address for service by courier on 13 July 2018.  The letter had also been sent to the applicant on 11 July 2018 to the email address specified in the applicant’s address for service.

9. As the applicant had failed to attend the hearing the first respondent’s solicitor sought orders that the Application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) and costs of $3,667.  Orders were made accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 3 August 2018