Singh v Minister for Immigration

[2014] FCCA 182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 182

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application on account of the applicant’s failure to appear.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: NARENDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2325 of 2013

Judgment of: Judge Driver

Hearing dates: 29 January, 7 February 2014

Delivered at: Sydney

Delivered on: 7 February 2014

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2325 of 2013

NARENDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 1 October 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal decision was made on 9 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Singh) a Skilled Provisional (Class VC) visa. 

2. The grounds of the application are:

   1. The Migration Review Tribunal did not take into consideration my evidence.

   2. The Migration Review Tribunal did not take into consideration my request of extension of time.

3. The matter came before me for first court date directions on 23 October 2013.  At that time, I made orders by consent providing for a timetable for the filing of material and listing the matter for a show cause hearing at 2.30pm on 29 January 2014.  There was no personal appearance by Mr Singh at that time.  The Court was, however, successful in contacting Mr Singh, who claimed that he was unable to attend due to illness.  Mr Singh sought an adjournment, which was opposed by the Minister.  

4. Mr Singh told me at that time that it was his intention to consult a medical practitioner and to obtain a medical certificate demonstrating his inability to attend Court on that day.  In view of the circumstances, I agreed to adjourn the show cause hearing until 2.30pm today.  I advised Mr Singh to obtain the medical certificate he intended to seek, particularly if he wished to avoid a costs order for costs thrown away by reason of the adjournment of the hearing on 29 January 2014.  I was satisfied that Mr Singh understood that the hearing would resume at 2.30pm today.

5. When the matter was called today, there was no appearance by or on behalf of Mr Singh.  The matter has been called twice, and on each occasion there was no answer to the call.  Prior to me coming on the bench, my deputy associate attempted to contact Mr Singh on his nominated telephone number.  That attempt was unsuccessful and the call was diverted to a message bank.  There is no explanation for the non‑attendance of Mr Singh today. 

6. In the circumstances, I have decided that the appropriate course is to dismiss the application on account of Mr Singh’s non‑attendance, and I so order. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 February 2014