Singh v Minister for Immigration

[2013] FCCA 1667

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1667

Catchwords:
MIGRATION – Application to set aside judgment made in default of attendance by applicant at hearing – refusal of application.

Legislation:  

Migration Act 1958

Taylor v Taylor [1979] HCA 38

Applicant: GURTEJBANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 82 of 2013

Judgment of: Judge Lindsay

Hearing date: 10 October 2013

Date of Last Submission: 10 October 2013

Delivered at: Adelaide

Delivered on: 10 October 2013

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not Applicable

Counsel for the First Respondent: Mr d’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent Not Applicable

ORDERS

1. The Application-in-a-Case filed on 10 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of TWO HUNDRED AND SEVENTY ONE DOLLARS ($271.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 82 of 2013

GURTEJBANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This was a matter listed for review before me on 16 September. It is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for a review of a decision of the Migration Review Tribunal. The effect of that decision was to affirm the decision of the delegate of the Minister to refuse to grant the Student (Temporary) (Class TU) visa that the applicant had sought.

2. The Tribunal goes into some detail as to the applicable assessment level of the applicant, the Schedule 5A requirements for that assessment level, and then the level of financial support that is required.  The delegate had sought information to assist him in ascertaining whether the applicant met those requirements and the applicant had not responded to the request for that information.  That led to the application before the Tribunal.  He was invited to a hearing before the Tribunal, and without going into any detail about it, I do not accept the explanation as to why the applicant was unable to attend a hearing before the Tribunal.  I do not accept his explanation as to why he was unable to provide the information that the delegate had sought prior to that. 

3. The delegate had calculated what funds were required pursuant to the Schedule 5A requirements.  There being nothing before the delegate, and then nothing before the Tribunal, as a function of the applicant not attending before the Tribunal to indicate that he had a capacity to provide or resource those funds, the Tribunal affirmed the decision of the delegate of the Minister.

4. That brought the s.476 Application for Review to this Court. In terms of Grounds for Review, and bearing in mind the need to establish a jurisdictional error before this Court would have a jurisdiction to send back for reconsideration this particular migration decision, the only matter described in the Grounds were these words: “financial support pending”.

5. The applicant did not attend a hearing before me on 16 September.  He says that he thought it was the 17^th.  Notwithstanding that state of belief, he telephoned the Court on the 16^th, to be advised that the hearing had already transpired, and that has elicited this application to set aside the orders I made in his absence. 

6. The Court has certainly a capacity to set these orders aside.  In fact, it has a duty to set the orders aside if an order has been made in his absence and there is an explanation for his absence.

7. There is an express statutory jurisdiction that arises under the terms of the Act, which is reflected in the Rules, but it is part of the inherent jurisdiction of the Court described by the High Court in cases such as Taylor v Taylor [1979] HCA 38 that the Court always has a capacity to set aside orders made in the absence of a party, where that absence is capable of reasonable or rational explanation to ensure that persons are given a reasonable opportunity to be heard.

8. Against the background of the non-participation of Mr Singh at every phase of the departmental and Tribunal scrutiny of his entitlement for the visa, and given the inherent unlikelihood of firstly, his making a mistake as to the day on which the hearing was listed before me, given his attendance at the hearing before the Registrar when that hearing was scheduled, coupled with the fortuitous nature of the telephone call to the Federal Court Registry at the time just after the hearing had concluded – as a combination of those matters, I do not accept what he puts in terms of simply overlooking the hearing date.

9. He was given a reasonable opportunity to be heard and did not take it. 

10. It is not something he has put on his oath, in any event. The only reference in the Affidavit he has filed in support of this application is that he was suffering from back pain and was depressed – that is [1]. At [2], he indicates he was suffering from fever. In my view he was under an obligation, against the background of this matter, and if he were asking the Court to seriously give consideration to such an application, he would have produced some kind of medical information. None is produced. I put no weight on his assertions as to his non-attendance on 16 September being a function of his medical incapacity.

11. The application is dismissed.

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

Associate: 

Date:  21 October 2013