Singh v Minister for Immigration and Border Protection

[2016] FCA 1417

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 1417

Appeal from:

Singh v Minister for Immigration & Anor [2016] FCCA 797

File number:

VID 430 of 2016

Judge:

MURPHY J

Date of judgment:

24 November 2016

Catchwords:

MIGRATION - application for extension of time within which to appeal from a judgment of the Federal Circuit Court – failure to appear at the hearing - application dismissed pursuant to r 35.33

Cases cited:

SZRTV v Minister for Immigration and Citizenship [2013] FCA 383

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158

Date of hearing:

24 November 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicant:

The Applicant did not appear

Solicitor for the First Respondent:

Mr A Cunynghame of Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent did not appear

ORDERS

VID 430 of 2016

BETWEEN:

TARANJEET SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	24 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file an appeal is dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth).

2.The Applicant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (revised from transcript)

MURPHY J:

1. In this matter the applicant, Mr Taranjeet Singh, who is a citizen of India, seeks an extension of time within which to file an appeal against a decision of the Federal Circuit Court dated 11 April 2016: Singh v Minister for Immigration & Anor [2016] FCCA 797. The Federal Circuit Court dismissed his application to review a decision of the (then) Migration Review Tribunal (the Tribunal) dated 27 August 2014.  The Tribunal had affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a temporary student visa.

2. On 9 May 2016 the applicant filed an application for extension of time and a draft notice of appeal together with an affidavit sworn by him on that date.  The draft notice of appeal is not drafted with the particular circumstances of this proceeding in mind, in that the grounds of appeal are formulaic and do not engage with the findings of either the Tribunal or the Federal Circuit Court.  While the grounds express the applicant’s disagreement with the conclusion of the Tribunal and the Federal Circuit Court they do not raise any intelligible or arguable case of error by either: SZRTV v Minister for Immigration and Citizenship [2013] FCA 383 at [31]. The draft notice of appeal also raises grounds which were not agitated in the Court below and the applicant did not explain that failure: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. The applicant did not file written submissions.

3. This application was listed for hearing on 23 August 2016 but it was adjourned from that date by consent.  I am informed by the solicitor for the Minister that the adjournment was necessary because the applicant was overseas.  On 4 August 2016 the applicant sent an email to chambers seeking that the application be adjourned for “a few more months” after 19 September 2016 in order that he could prepare his case and appear at the hearing.  On 15 August 2016 orders were made fixing the application for hearing in the Full Court period 31 October to 25 November 2016 and my chambers so informed the applicant.

4. On 9 September 2016 the Court sent an email to the applicant advising that the matter had been listed for hearing on 24 November 2016.  On 16 November 2016, the solicitors for the Minister sent a letter to the applicant’s postal address which, amongst other things, confirmed that the matter was listed for hearing today.  On 23 November 2016 my chambers telephoned the applicant and left a message confirming that the application was listed for hearing the following day.  He was requested to telephone chambers but he did not do so.

5. When the matter was called on for hearing this morning, there was no appearance by the applicant. The Minister sought orders to dismiss the application pursuant to rule 35.33 of the Federal Court Rules 2011 and to require the applicant to pay the Minister’s costs.  In my view such orders are appropriate and I have made the attached orders.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: 

Dated:        24 November 2016