Singh v Minister For Immigration and Anor (No.2)
[2012] FMCA 1227
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2012] FMCA 1227 |
| MIGRATION – Migration Review Tribunal – whether dismissal of application for judicial review should be set aside – whether applicant’s explanation for failure to appear at first court date satisfactory – whether medical certificate satisfactory – whether ground of application had sufficient prospects of success – application for reinstatement dismissed. |
| Jagmohan Singh v Minister for Immigration and Anor [2012] FMCA 1147 |
| Applicant: | JAGMOHAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2098 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 December 2012 |
| Date of Last Submission: | 18 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitor for the Respondent: | Ms Baggett (DLA Piper Australia) |
ORDERS
The applicant’s application in a case, filed on 12 December 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $650.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2098 of 2012
| JAGMOHAN SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
On 12 December 2012, the applicant filed an application in a case seeking to set aside orders made by the Court on 28 November 2012 dismissing the proceeding by reason of the failure of the applicant to appear at the first court date.
The order sought in the application in a case is opposed by the first respondent.
In support of the application today, the applicant read an affidavit sworn by him on 12 December 2012. That affidavit stated as follows:
“That I am the applicant in this proceeding I can not read and write well and I do not have experience in the court system. I was sick on 28 November 2012, there was no body to help me therefore I was unable to advise the court about my attendance on 28 November 2012, Annexed ‘A’ is my medical certificate to produce.”
The affidavit annexed a medical certificate dated 29 November 2012 which stated as follows:
“According to the statement of the patient
He/she has been/is suffering from:
Gastro-oesophageal reflux
He/she will be unfit for his/her normal work from:
27 November 2012 to 29 November 2012 inclusive.”
The first respondent tendered a letter dated 3 October 2012 addressed to the applicant at the applicant’s address for service which was marked Exhibit 1R.
Exhibit 1R notified the applicant of the date, time and location of the first Court date on 28 November 2012 and informed the applicant that if the applicant did not appear at the first court date, the first respondent may seek to have the matter dismissed with costs. On 28 November 2012, Registrar Ng did just that (Jagmohan Singh v Minister for Immigration and Anor [2012] FMCA 1147).
The applicant was unrepresented this morning although had the assistance of an interpreter.
I explained to the applicant that the two significant issues for the Court would be his explanation for his failure to appear on 28 November 2012 and whether the grounds of his application have sufficient prospects of success such that it would be in the interests of justice to reinstate his application for judicial review of the Tribunal’s decision, dated 4 September 2012.
The applicant had nothing further to say to explain his failure to appear. The solicitor for the first respondent, Ms Baggett, submitted that the applicant’s explanation and medical certificate were unsatisfactory in that the medical certificate post dated the directions hearing and relied on the applicant’s statement of his illness, and stated only that the applicant was unfit for his normal work on the relevant date. I agree with that submission. Further, there was no communication from the applicant to either the Court or the first respondent seeking an adjournment of the first court date or for any other reason.
In the circumstances, I am not satisfied that the applicant has provided a satisfactory explanation for his failure to appear on 28 November 2011.
In considering whether it is otherwise in the interests of justice that the relief the applicant seeks be granted, I have regard to the grounds of the applicant’s application seeking judicial review of the decision of the Migration Review Tribunal (“the Tribunal”), dated 4 September 2012. The ground of that application is as follows:
“There has been miscarriage of justice not to grant adjournment enabling applicant to engage legal representative to represent applicant.”
The ground of the applicant of the application was interpreted for the benefit of the applicant and he was invited to say whatever he wished in support of that ground or in support of his application for judicial review generally. The applicant responded only that the Tribunal did not give him more time.
The solicitor for the first respondent read the affidavit of the applicant, sworn 24 September 2012, and filed on 26 September 2012, annexing the Tribunal’s decision record.
The Tribunal’s decision record noted that the applicant’s visa application was lodged on 10 March 2011 and the application for review was lodged with the Tribunal on 24 April 2012.
The Tribunal noted that on 22 August 2012, following its invitation to attend a hearing, the applicant sought an adjournment of the hearing on the basis that he was seeking legal representation. The Tribunal noted that the applicant had over 4 months to organise legal representation if he wished to do so and a further month until the hearing.
The Tribunal noted that on 23 August 2012, it notified the applicant that his request for an adjournment had been refused and that if he failed to attend the hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. The Tribunal further noted that on 28 August 2012, the Tribunal received another letter from the applicant seeking an adjournment. The Tribunal noted that on 29 August 2012, it notified the applicant that his further request for an adjournment had been refused and reiterated that if the applicant failed to attend the scheduled hearing that the Tribunal may proceed to make its decision without further notice.
The applicant failed to attend the scheduled hearing and made no further contact with the Tribunal. In the circumstances, the Tribunal purported to exercise its discretion to make its decision without taking any further action to allow or enable the applicant to appear before it.
The power to adjourn is permissive and the Tribunal is not obliged to grant such a request. It would appear to have been open to the Tribunal to exercise its discretion as it did to refuse to grant the applicant’s requests for adjournments where it was satisfied that the applicant had sufficient time to obtain any legal advice.
In the circumstances, the ground of the application appears to have no or no reasonable prospects of success and certainly not sufficient prospects of success such that it would be in the interests of justice to set aside the orders made by Registrar Ng on 28 November 2012.
Following the submissions of the solicitor for the first respondent, the applicant was invited to say anything further in support of his application. The applicant then said, for the first time, that he wished to take legal advice. I note the applicant’s initiating application was filed on 26 September 2012, almost three months ago. Having regard to the opportunity that the applicant had had to obtain any legal advice, to the extent that the applicant was seeking to adjourn today’s hearing for that reason, that application was refused.
Accordingly, the orders sought by the applicant to set aside the orders made by the Court on 28 November 2012, dismissed his proceeding for judicial review, are refused and his application in a case is dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Federal Magistrate Emmett.
Date: 18 December 2012
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