Singh v Minister for Immigration and Border Protection
[2018] FCA 267
•9 March 2018
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2018] FCA 267
Appeal from: Singh v Minister for Immigration & Anor [2017] FCCA 1921 File number: VID 852 of 2017 Judge: MORTIMER J Date of judgment: 9 March 2018 Legislation: Federal Court of Australia Act 1976 (Cth) , s 37M
Migration Act 1958 (Cth), s 116
Cases cited: Singh v Minister for Immigration & Anor [2017] FCCA 1921 Date of hearing: 17 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr O Young of Sparke Helmore Lawyers ORDERS
VID 852 of 2017 BETWEEN: BIKRAMJEET SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be fixed by way of a lump sum.
3.On or before 4 pm on 22 March 2018 the first respondent is to file, and serve on the appellant by email at his last known email address, an affidavit setting out the lump sum costs claimed by the first respondent and their basis, in accordance with the Court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
I have made orders dismissing this appeal for the appellant’s failure to prosecute it. It is necessary to set out the circumstances which led to these orders and to explain why I consider those orders appropriate.
The appellant had appealed from orders of the Federal Circuit Court on the judicial review of a decision by the Administrative Appeals Tribunal to affirm the cancellation of the appellant’s Student (Higher Education Sector) (Subclass 573) visa under s 116(1)(a) of the Migration Act 1958 (Cth).
The Federal Circuit Court reasons comprehensively set out the factual background: see Singh v Minister for Immigration & Anor [2017] FCCA 1921. Given the course the matter has taken it is not necessary to set out the detail of what occurred in the Tribunal and the Federal Circuit Court, nor the details of the appellant’s grounds of appeal to this Court.
In this Court the appellant was unrepresented, as he was before the Federal Circuit Court. However he lodged a notice of appeal with nine grounds of appeal, formulated in a way that was not inappropriate for an appeal, in the sense that each made an allegation of error in respect of the Federal Circuit Court, and set a contention about what the Federal Circuit Court should have done. The appellant did not file any written submissions in advance of the appeal, but he did indicate in communications ahead of the listing date for the appeal that he would be attending.
The appeal was listed for hearing on Friday 17 November 2017. The appellant attended that hearing. As he had requested, a Punjabi interpreter had been arranged to assist him.
At the beginning of the 17 November hearing, counsel for the respondent informed the Court that the appellant appeared unwell prior to the hearing; that the appellant had said he had chest pains and had been at Dandenong Hospital with chest pains the day prior. The appellant certainly appeared unwell.
Through an interpreter, the appellant was asked what he wished to do. He informed the Court he had been to Dandenong Hospital the previous day but “gave priority” to the Court that morning, although he indicated he needed to go back to the hospital. I informed him an adjournment would mean there would be a long delay before his case could be relisted, and asked him what he wanted to do. He said, through the interpreter:
What I can do, I cannot speak.
I asked the appellant whether he had prepared anything to say at the hearing, but the appellant had not prepared anything and indicated that he “need to speak about what actually in my case”.
The appellant then provided a medical certificate from a doctor, which included the wording:
Cannot exclude cardiac event. Please assess and treat as you see fit.
I determined an adjournment was appropriate. The Minister did not oppose that course. The matter was adjourned to a date to be fixed before me. I urged the appellant to use the interim time to seek some legal advice about his prospects on the appeal and the cost risks he faced if he were to lose. My associate gave him details of a number of community legal centres he could attend.
On 11 December 2017 the Court’s National Operations Team emailed the appellant to ask for his availability during the 12 February to 9 March 2018 Full Court period for the matter to be relisted. At 4.17 pm that same day, the appellant replied:
Hii
Good evening.
1. I will represents myself in the court for hearing matters
2. I don't have any unavailable dates during the proposed sitting period of time.
3. I may need punjabi interpreter at the time of hearing.
4. I didn't change any contact details.
Accordingly, the matter was listed for Tuesday 13 February 2018 at 10.15 am. As he had been on the previous occasion, the appellant was informed of the listing by email, along with other logistical arrangements for the hearing, including “Preparing for the hearing” and “Information about fees”.
The appellant was reminded by email, sent by my chambers, of the hearing, and his opportunity to make submissions by a further email from chambers on 25 January 2018. Since he had not filed any the first time, the appellant was granted additional leave to file written submissions on, or before, Friday 9 February 2018. He was also informed that if he did not wish to file submissions, he could “simply tell the judge what you want to say on the day of the hearing”.
The appellant was asked to, but did not, acknowledge receipt of this email.
On 30 January 2018, my chambers contacted the appellant by telephone, with an interpreter available. The appellant chose to communicate in English and the interpreter was not used. He confirmed during the telephone call that he would be attending the hearing, and that he would file submissions. The Minister’s legal representative was then informed of what the appellant had said.
Despite that indication, on 6 February 2018 the appellant sent the following email to the Court:
Thank you for the clarification.
Hiii ...this is bikramjeet singh.
I am just informing to the court ..that i ma going to withdraw my case against the immigration department. .because due to emergency i am going to visit to my home country. .and i am unable to come back in Australia after that.
The appellant was informed by return email the same day that he needed to file a notice of discontinuance. He was also given the email contact for the Court’s Victorian appeals team if he required assistance. He was asked to attend to this urgently so that the hearing could be vacated.
On the afternoon of Wednesday 7 February 2018, my chambers contacted the appellant to see if he received the email of 6 February 2018. The appellant said that he did not receive it, and asked for it to be re-sent. He also said that he had already left Australia and would not be returning. That afternoon my chambers sent the appellant a form to fill out so that the appeal could be withdrawn and asked him to return it.
On the same day, the Minister’s legal representatives were informed of what the appellant had told the Court, including that he had advised he had left Australia and that the Court expected to receive a notice that the appeal was being discontinued.
Having had no further communication from the appellant, the day before the appeal hearing (namely 12 February 2018) my chambers requested the Minister’s legal representatives attempt to contact the appellant and liaise with him about discontinuing the appeal as he said he had intended to do. The Minister’s legal representative informed the Court of several attempts to contact the appellant by phone and email, all of which were unsuccessful.
My chambers tried to dial the appellant’s mobile phone number twice, but it now appeared to have been disconnected.
In those circumstances, on 12 February 2018 orders were made vacating the listing of the appeal on 13 February 2018, and the parties were so informed by email.
Rule 36.73 enables an appellant to withdraw an appeal without the Court’s leave at any time before the hearing of the appeal. In those circumstances, r 36.73(4) provides that unless the parties otherwise agree, an appellant who files a notice of discontinuance must pay the costs of each respondent to the appeal.
In the circumstances, it would be an inefficient and ineffective use of resources (both of the Minister and the Court) to have maintained the listing of the appeal when it was clear the appellant had told the Court he had left Australia and did not intend to pursue the appeal, and then failed to respond to numerous communications to formalise that position in the way the Court’s Rules required. I considered the quickest, most inexpensive and efficient course, consistent with the obligation in s 37M(1)(b) of the Federal Court of Australia Act 1976 (Cth), was to vacate the hearing date and make orders on the papers if no notice of discontinuance was filed.
I allowed some time after vacating the hearing of the appeal for the appellant to file the notice he had been informed was required, and which had been sent to him. He did not do so. Nor did he communicate with the Court that he wished to press his appeal, notwithstanding his earlier indication.
By r 36.74 a respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant, amongst other failures, to prosecute the appeal. By r 1.40 the Court may, at any stage of the proceeding, exercise a power mentioned in the Rules on its own initiative. I have dismissed the appeal, on the Court’s own initiative, for the appellant’s failure to prosecute the appeal, which includes a failure by the appellant to file a notice of discontinuance despite repeated attempts to assist him to do so.
I also consider that r 1.32 supports the making of these orders, as I consider a disposition of this kind, using the least costs and resources of both the Court and the Minister, appropriate in the interests of justice. In part that is because a costs order does not address the Court’s costs and use of resources in terms of court time, court staff and transcript.
If the appellant had followed through on his stated, and I find, actual intention to discontinue the appeal, he would have incurred a liability for the Minister’s costs under r 36.73(4). I consider it is appropriate there be a costs order in the Minister’s favour in these circumstances. In accordance with the Court’s practice, the order should be by way of a lump sum.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 9 March 2018
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