SINGH v Minister for Immigration and Anor

[2017] FCCA 2697

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2697

Catchwords:
MIGRATION – Administrative Appeals Tribunal – subclass 485 visa – show cause hearing – applicant failed to appear – dismissed for non-appearance.

Legislation:
Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Applicant: JASVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 55 of 2017

Judgment of: Judge Riley

Hearing date: 2 October 2017

Date of last submission: 2 October 2017

Delivered at: Melbourne

Delivered on: 2 October 2017

REPRESENTATION

Advocate for the applicant: No appearance

Solicitors for the applicant: None

Advocate for the first respondent: Emily Wilde

Solicitors for the first respondent: Clayton Utz

Advocate for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz

ORDERS

1. Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001, the application filed on 11 January 2017 be dismissed for non-appearance.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

NOTATION

Pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 55 of 2017

JASVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is a show cause application in the context of an application to review a decision of the Administrative Appeals Tribunal. 

2. The applicant was aware of the hearing date.  Orders were made on 19 July 2017 listing the matter for a show cause hearing today at 11:30am.  The applicant emailed the Minister’s solicitor on 28 September 2017, with a copy to the court, saying that he had a final hearing today and asking for an adjournment.  The applicant said he was depressed because he had heard that his mother is in hospital in India.  The applicant provided a medical certificate saying a Ms Kaur, presumably his mother, had acute osteoarthritis of the right knee and was advised to have bed rest for 10 days.  The applicant said he proposed to travel to India on 2 or 3 October 2017. 

3. The solicitor’s response to the applicant’s email said that the Minister did not consent to an adjournment and said that the hearing was listed at 11:30am today.  The Minister’s solicitor said that:

   a)the medical certificate in respect of Ms Kaur did not say that she was seriously ill and her son needed to attend upon her;

   b)there was no medical evidence to the effect that the applicant was unable to attend court; and

   c)there was no reason given that the applicant could not travel to India after the hearing on 3 October 2017.

4. My chambers’ response to the applicant’s email said that, in the absence of consent from all parties, the matter could not be adjourned in chambers, and said that the matter remained listed for a show cause hearing at 11:30am today.

5. When the matter was called, the applicant did not respond to the call.  There is no proper basis for an adjournment.  It is appropriate, in all the circumstances, to make an order dismissing the matter for non-appearance.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:       3 November 2017