SINGH v Minister for Immigration

[2017] FCCA 385

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 385

Catchwords:
MIGRATION – No appearance by the applicant – application of r.13.03C(1)(c) – application dismissed.

Legislation:

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

Applicant: PRABHJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2071 of 2016

Judgment of: Judge Street

Hearing date: 2 March 2017

Date of Last Submission: 2 March 2017

Delivered at: Sydney

Delivered on: 2 March 2017

REPRESENTATION

No appearance by the Applicant.

Solicitors for the Respondent:

Ms S Given

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. I order the applicant to pay the first respondent’s costs fixed in the amount of $5600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2071 of 2016

PRABHJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 June 2016, affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.

Before this Court

1. The proceedings were commenced on 2 August 2016, one day outside the time required to bring the proceedings, and an extension of time is required under s.477 of the Migration Act 1958 (Cth) (“the Act”). On 19 October 2016, the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. A notice of intention to withdraw as lawyer dated 24 January 2017 was sent to the Court on the same date.  A notice of withdrawal of lawyer was then filed, dated 2 February 2017.

3. The applicant sent a letter to the Court on 22 February 2017 requesting the matter be adjourned, asserting that the applicant had approached a lawyer in Brisbane who said that it was a case that was too complex. The applicant asserted that he had a strong case and that he wanted an adjournment.  The applicant was informed that any application for an adjournment must be made by an application in a case supported by an affidavit.  On 25 February 2017, the applicant completed an application in a case, supported by an affidavit dated 24 February 2017, which were not filed but were sent to the solicitor for the first respondent.

4. The affidavit referred to the cessation of the lawyer acting for the applicant, and the applicant alleged he had been trying hard to find representation.  No particulars of the steps taken by the applicant, or when those steps commenced are identified.  The applicant identified that he lived in a rural area, and it was difficult to have time to see a lawyer at short notice.  The applicant referred, without identifying the date, to seeing a migration agent and referred to calling a migration agent. The applicant appears to have given the task of finding a lawyer to the migration agent.

5. Again, no detail is provided as to the steps actually taken by the applicant and why the applicant personally was not taking steps to obtain a lawyer. The applicant repeated his assertion of having a good case, while also asserting that he would obtain a lawyer. The matter has been called, and it is now past 9.45 am, and the applicant has not appeared. The first respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”).

6. The current application does not identify any ground that appears on its face to have a reasonable prospect of success and, notwithstanding the applicant’s optimism of having a good case, the Tribunal’s reasons on their face reflect an orthodox approach to the determination of whether the applicant met the statutory criteria in respect of the meaning of spouse.

7. The fact that the applicant has filed the application in a case means the applicant was well aware of the hearing date today, and has made a deliberate decision, on the face of the material before the Court, not to attend.  The applicant was on notice that the proceedings were fixed for hearing, and the first respondent had foreshadowed, by the letter dated 22 February 2017, that if the applicant failed to appear, the first respondent would move to have the application dismissed and seek costs.

8. The applicant’s affidavit does not provide a satisfactory explanation either for the failure of the applicant to appear today or in relation to the steps the applicant allegedly has taken concerning legal representation.  There is nothing in the affidavit to identify any basis upon which the Court could have some confidence that an adjournment would be of any of any utility.  If the Court had been satisfied that there was proper basis to support an adjournment, and that an adjournment was warranted in the interests of the administration of justice, notwithstanding the absence of the applicant, the Court would have adjourned the matter.

9. However, on the face of the material before the Court, the applicant has made a deliberate decision not to appear in circumstances where the applicant was well alive to the consequences of his failure to appear, in that the first respondent would move that the application be dismissed with costs. 

Conclusion

1. In these circumstances, I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 March 2017