Singh v Minister for Immigration - [2009] FMCA 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 127

MIGRATION – Reasons for dismissal of application for non-attendance.

Migration Act 1958

Applicant:

HARPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 181 of 2008

Judgment of:

Burchardt FM

Hearing date:

18 December 2008

Date of Last Submission:

18 December 2008

Delivered at:

Melbourne

Delivered on:

23 February 2009

REPRESENTATION

The Applicant:

In Person (no appearance)

Counsel for the Respondents:

Ms K Miller

Solicitors for the Respondents:

Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 181 of 2008

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 18 December 2008 I dismissed Mr Singh's application filed as an application in a case on 26 November 2008. That application in substance sought to reinstate his application, earlier dismissed for non‑attendance.
On 18 December 2008 I dismissed Mr Singh's application because he did not attend court. I did not give reasons for judgment at that time.
These reasons, which have been requested in light of the fact that the matter is to be heard by a judge in the Federal Court on appeal, will hopefully explain both why I dismissed Mr Singh's application and why I did not at that time give reasons for doing so.
This matter can only be properly understood if one pays regard to its history in the court.
On 15 February 2008 Mr Singh lodged an application under the Migration Act seeking judicial review of a decision of the Migration Review Tribunal signed on 10 January 2008.
The Tribunal decided it did not have jurisdiction to entertain Mr Singh's application. Relevantly, the Tribunal found:
As the prescribed application fee has not been paid, or waived under r.4.13(4), the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
Not perhaps surprisingly, the application and supporting affidavit were not expertly completed, but it is plain that the gravamen of what Mr Singh was complaining about was that he should have been given more time to pay his fee of $1400 because he asserted that he had been told by a Tribunal staff member that he could do so until the end of January.
Following a notice of appearance, on 2 April 2008 Registrar Allaway made procedural orders to bring the matter on for trial on 29 October 2008, including a requirement that the applicant file and serve contentions of fact and law on or before 28 May 2008. On 29 May 2008 Mr Singh filed a "summary of contention for facts and law as stated" in which essentially he repeated his earlier complaint.
The first respondent complied with his obligations pursuant to the orders made in April (subject to some very slight delays) and on 29 October 2008 the matter came before the court. The transcript of the hearing on 29 October 2008 shows that Mr Singh attended alone.
He asserted that his lawyer was supposed to be at the hearing and that he had telephoned him but was unable to contact him.
I stood the matter down till 2.15 and suggested that Mr Singh make every endeavour to find out where his solicitor was.
The matter resumed at 2.15 and Mr Singh informed the court that he had been to the office of his solicitor in Clayton as well as telephoning him and had not been able to contact him.
Mr Singh did assert that the solicitor had filed some contentions of fact but, as I pointed out, the file did not have any document from Mr Suraj Anand, the person identified as the solicitor.
Although the Minister opposed an application for adjournment, I indicated that I was not prepared to force Mr Singh to represent himself on that day. I adjourned the matter till the succeeding Friday, 31 October, to give Mr Singh an opportunity to contact his lawyer or in the alternative, to prepare for a hearing at which he would represent himself.
The matter was eventually adjourned till 2.15 pm on Friday 31 October because the Minister's advocate was otherwise engaged in the morning. In relation to the adjournment on the Friday at 2.15 Mr Singh said, more than once, "No problem" including the 2.15 pm start.
It should be noted that counsel for the Minister expressed some surprise on 29 October 2008 that a solicitor was involved. As she pointed out, "Usually when a solicitor is even consulted, we'll get a phone call as a matter of courtesy."
On 31 October 2008 the matter was called at 2.15 pm. Because there is always a possibility of an applicant being delayed, I stood the matter down and had the matter called again at 2.35 pm. When Mr Singh did not appear, nor any person on his behalf, I dismissed the application for non‑attendance of the applicant, pursuant to Rule 13.03A of this Court’s Rules.
On 26 November 2008, as earlier indicated, Mr Singh filed his application in a case which simply set out the orders I had made. But in an affidavit filed contemporaneously, however, he stated:
With due respect, I am writing in regards to my court date which was on 31 Oct 08 but by mistake I thought that it is on 7 Nov 08. So that's why I didn't turn up. So please relist my case and give me new date to come to court. Thank you.
That application was listed for hearing on 18 December 2008. It should be noted that the application itself was clearly marked with the return date of 18 December 2008 at 9.30 am.
On 18 December 2008, as the transcript reveals, the matter was called on at 9.36 am and Mr Singh was not present. The matter was called and there was no response.
It emerged that counsel for the Minister had not received the affidavit in support of the application until that morning, and I read out the gravamen of what Mr Singh had requested. I stood the matter down, in case the applicant had been delayed, until 10:10 am. Mr Singh still failed to attend.
I observed when the matter was further heard that there had been no formal notice of listing sent to the parties. I infer that counsel had happened to see the listing and attended because of that.
Counsel observed:
My experience with these reinstatement applications is that a hearing date is allocated on the day that the application is filed and I note that in this case the application in a case has been stamped and then the date has been written in by hand.
My understanding is that this document is usually then served - it wasn't in this case, but normally it is - and it is by way of the application in a case that the parties were advised of the hearing date.
I then forthwith dismissed the application for non‑attendance, foreshadowing that I had little doubt that there would be a subsequent application to set aside, which would be dealt with on its merits when it occurred.
As I observed on the transcript, counsel for the Minister's understanding of the process involved in applications for reinstatement accorded with my own.
The reason that I dismissed the application for non‑attendance was that, given that Mr Singh had attended court at least once and, albeit not in a very fulsome way, complied with the court's directions for the filing of contentions of fact and law himself, it was reasonable to suppose that he wished to continue to participate in the proceeding.
Although some of Mr Singh's earlier explanations for non‑attendance might seem at first blush somewhat unpersuasive ( I refer particularly to his failure to attend on Friday, 31 October 2008 when he had been in court on Wednesday, 29 October 2008), I was not prepared to deal with his application on the merits without giving him every opportunity to be heard.
It therefore seemed to me preferable to dismiss his application for non‑attendance, which is what I did.
I did not give reasons for judgment at the time because the basis for doing so was clearly fully understood by counsel for the Minister. Further, given that Mr Singh still had the capacity to make an application to set aside the order dismissing his application for non‑attendance on 18 December 2008, it was not then apparent that there was any practical utility and/or necessity for the provision of reasons for judgment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 23 February 2009