SINGH v Minister for Immigration

[2013] FCCA 482

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 482

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – no appearance by applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), r.13.03C, 44.12
Migration Regulations 1994 (Cth), Sch.2

Applicant: NARENDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3121 of 2012

Judgment of: Judge Nicholls

Hearing date: 9 May 2013

Date of Last Submission: 9 May 2013

Delivered at: Sydney

Delivered on: 9 May 2013

REPRESENTATION

The Applicant No appearance

Appearing for the Respondent: Ms B Rayment

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application made on 24 December 2012 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount $3326.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3121 of 2012

NARENDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made to this Court, on 24 December 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 5 December 2012, which affirmed the decision of the Minister’s delegate, made on 12 October 2010, to refuse the grant of a Student Temporary (sub-class 572) visa to the applicant. That application to the Court was made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).

2. I also have before me today a bundles of relevant documents, the Court Book (“CB”), filed by the Minister’s solicitors.

3. I note the applicant is a citizen of India (CB 1). He arrived in Australia in February 2008 with a student visa ([10] at CB 84). He subsequently applied for a further student visa in July 2010 and that application was refused ([11] at CB 85).

4. The applicant sought review by the Tribunal and the Tribunal affirmed the delegate’s decision ([24] at CB 86). It is that Tribunal decision which is the subject of the application before the Court today. 

5. This matter first came on before me on 13 March 2013. At that time the applicant appeared in person and was assisted by an interpreter in the Punjabi language. On that occasion, the Minister pressed for an immediate hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) (now, the Federal Circuit Court Rules 2001 (Cth)). At that time I understood that the basis for the request was that, in the circumstances, no arguable case arose from the grounds as presented by the applicant.

6. For the record, those grounds were, and continue to be:

   “1. The Tribunal made error of fact and law.

   2. Miscarriage of justice.”

7. At that time, I sought to explain to the applicant that the issue before the Tribunal was whether, at the time of its decision, he was enrolled in, or was the subject of a current offer of enrolment in, any course of study as was required for him to meet the relevant criterion set out in cl.572.223 of Sch. 2 to the Migration Regulations 1994 (Cth). 

8. At the first Court date the applicant was accompanied to the Court by a representative of the “Australian Multicultural Charity”. It appeared the charity was in the process of assisting the applicant to obtain legal advice. At that time, the applicant sought further time to obtain this advice. While, on their face, the grounds of the application did not appear to raise an arguable case in light of what was otherwise before the Court (that is, the Tribunal’s decision record), I nonetheless granted the applicant further time to enable him to pursue his request for legal advice. The matter was set down for further directions today. 

9. The applicant was on notice at that time that, should the grounds of the application not be amended, or further explained, the Minister would press for a show course hearing. That is, a hearing pursuant to r.44.12 of the Rules, as the Minister had sought at the first Court date.

10. Today, when the matter was called, there was no appearance by the applicant. The Minister’s legal representative, Ms B Rayment, asked that the application be dismissed pursuant to r.13.03C(1)(c) of the Rules. That is, in light of the applicant’s failure to attend.

11. The applicant’s failure to attend could not be said to be entirely unexplained. I note that the Registrar of the Federal Court in Sydney received a communication from the applicant which is to the following effect:

    “Ref: Hearing adjournment

    The above matter was listed for direction on 9 May 2013 at 10.15. I am going to apply for legal Aid as I cannot engage private lawyer therefore I am seeking adjournment of 9 May 2013.”

12. It is not clear as to when that communication was received by the Registry. In any event, the communication is dated 6 May 2013 and it appears to have been received electronically by the Registry some time late on that day. In any event, it may be that that can be taken as a request for an adjournment. However, I agree with Ms Rayment’s submissions that that does not provide satisfactory explanation for the applicant’s failure to appear today. 

13. The applicant was on notice, amongst other things, including by way of the relevant “Information Sheet” that was provided to the applicant at the first Court date, that a request for an adjournment is not a grant of an adjournment in these proceedings. The applicant, had he sought an adjournment, would still have been required to have come and argued his reasons and presented any evidence to the Court in support of any such argument. For whatever reason, he has chosen not to do so. The applicant was clearly on notice at an earlier time as to the Minister’s position, and as to the paucity of the grounds of his application. 

14. The applicant has already been given some leeway by the Court to arrange legal representation. Noting in any event that the applicant had from when he made his application to the Court on 24 December 2013 at least, if not earlier going back to the date of the Tribunal’s decision, to arrange any legal advice or representation. I also note he did have the assistance of the charitable organisation, whose support was evident, given that the applicant was accompanied to the first Court by a person who described himself as the chair of that organisation. 

15. I cannot see that there is any appropriate basis on which the matter today should be further adjourned. Further, the applicant seeks an adjournment, but does not say how long he needs. From what he told the Court there was nothing to suggest any prospect of success in obtaining Legal Aid. I cannot be satisfied therefore that this is a factor in favour of granting him further time. In any event, the applicant has otherwise had a reasonable opportunity to obtain legal advice. This matter is not such as to not proceed to dismiss the application.

16. I do not see that the applicant’s letter to the Registry is a sufficient explanation for his failure to appear today, particularly in light of the notice that the applicant would have received by way of the “Information Sheet”.

17. So, in all, the applicant has not appeared. There is no satisfactory explanation for his failure to appear. He was on notice of the Court event today. It is appropriate that I make the order that the Minister’s representative seeks today. I will make that order. 

18. As to costs, it is appropriate in my view that an order for costs be made in this matter. The applicant has had the opportunity to appear, has chosen for whatever reason not to come to Court to press his application for an adjournment. It is appropriate that an order for costs be made.

19. As to the amount, I am satisfied, given the work that has been done by the Minister’s solicitors, as I can discern from the material on the Court’s file, that the amount sought is a reasonable amount and equates with the amount recommended, or set out, in the relevant schedule to the Rules of this Court as the “guideline” amount for matters of this type and that have reached this stage of proceedings. I will make the order in that amount.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  7 June 2013