SINGH v Minister for Immigration

[2016] FCCA 3189

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3189

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – no appearance by the applicant – deliberate and intentional decision not to attend the hearing – application of r.13.03C(1)(c) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

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

Applicant: DALJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1880 of 2016

Judgment of: Judge Street

Hearing date: 8 December 2016

Date of Last Submission: 8 December 2016

Delivered at: Sydney

Delivered on: 8 December 2016

REPRESENTATION

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison Lawyers

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1880 of 2016

DALJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2016 in respect of a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The proceedings were commenced on 19 July 2016 and on 22 September 2016 a Registrar of the Court made orders fixing the matter for hearing today. The applicant was in attendance at the time of that hearing.

3. The matter has been called outside the Court and it is now passed the time fixed for hearing and past 2:25 pm. The applicant has not appeared. The solicitor for the first respondent made a telephone call to the applicant and the applicant indicated that he had been intending to attend, was stuck in bad traffic and had decided that he was not able to attend and he asked for an adjournment.

4. The first respondent has moved under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 for the dismissal of the application for the failure of the applicant to appear.

5. I do not regard the explanation proffered by the applicant in response to a telephone call by the solicitor for the first respondent as a satisfactory or adequate explanation for the absence of the applicant. To the extent that the applicant requested through the solicitor for the first respondent another day for the hearing of the application, I am not satisfied that there is any proper basis for an adjournment of the application. I am not satisfied that an adjournment is warranted in the interests of the administration of justice.

6. On the material before me, the applicant has made a deliberate and intentional decision not to attend Court at a hearing of which the applicant is aware. That has repercussions for the applicant in relation to any application that might be made under the rules in terms of an order made in default of appearance. An intentional decision by a party not to appear in front of a Court is in essence, one which impacts on the rule that provides for a procedural fairness opportunity when orders are made in default of appearance for a party to be heard afresh. Where that party has made a deliberate decision not to attend, that is a matter likely to affect the exercise of the Court’s discretion in relation to the rule to reopen an order made in default of appearance of a party.

7. I am satisfied that the applicant was well aware of the hearing date. 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 Federal Circuit Court Rules 2001.

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

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 December 2016