Singh v Minister for Immigration and Border Protection

[2015] FCA 1317

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 1317

Citation:	Singh v Minister for Immigration and Border Protection [2015] FCA 1317
Appeal from:	Singh v Minister for Immigration & Anor [2015] FCCA 2490
Parties:	RAJWINDER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	VID 495 of 2015
Judge:	MURPHY J
Date of judgment:	24 November 2015
Catchwords:	MIGRATION – Appeal from decision of Federal Circuit Court – dismissal for non-appearance
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 25(2B)(bb) Federal Court Rules 2011 (Cth) r 36.75
Date of hearing:	24 November 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Appellant:	The Appellant did not appear
Solicitor for the First Respondent:	Ms A Briffa, Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 495 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

RAJWINDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	24 NOVEMBER 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 495 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

RAJWINDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	MURPHY J
DATE:	24 NOVEMBER 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT (revised from transcript)

INTRODUCTION

1. In this matter the appellant appeals from a decision of the Federal Circuit Court dated 17 August 2015 dismissing his application for judicial review in relation to a decision of the Migration Review Tribunal, as it then was, (“the Tribunal”) (Singh v Minister for Immigration & Anor [2015] FCCA 2490).

2. The application to the Federal Circuit Court sought review of a decision of the Tribunal dated 8 May 2014 in which it affirmed the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 2 February 2012 refusing to grant the appellant a Student (Temporary) (Class TU) visa (“visa”).

   THE APPELLANT’S NON-APPEARANCE

3. The appellant filed a Notice of Appeal on 3 September 2015.  On 21 September 2015 the National Appeals Registrar wrote to the appellant by pre-paid post to the postal address he provided, and by email to the email address he provided, informing him that it was anticipated that the Court would hear the appeal during the sitting period 2-27 November 2015.  Attached to the letter were directions made by Registrar Josan on 21 September 2015 which included directions that:

   (a)the appeal be listed for hearing during the sitting period 2-27 November 2015; and

   (b)the appellant file and serve a written outline of submissions no later than 10 business days before the hearing date fixed.

4. On 14 October 2015 the National Appeals Registrar wrote to the appellant at the same postal address, and emailed him at the same email address, informing him that the appeal was listed to be heard on 24 November 2015 at 10:15 am.

5. The solicitor for the Minister handed up letters from the Australian Government Solicitor to the appellant dated 15 October 2015, 22 October 2015 and 17 November 2015, which again informed him of the hearing date.

6. The appellant did not file submissions in accordance with the directions of 21 September 2015.

7. The matter came on for hearing this morning as scheduled at 10.15 am.  There was no appearance by the appellant when the matter was called inside and outside the Court.  I stood the matter down until 10.40 am and requested Ms Briffa, the solicitor for the Minister, to telephone the appellant.  When the matter resumed at 10.40 am Ms Briffa informed the Court that she had spoken to the appellant at 10.20 am and he said that he was stuck in traffic, but he would be at Court in 20 minutes.  Ms Briffa also said that she made several further attempts to telephone the appellant which went unanswered.  To provide the appellant with sufficient time I stood the matter down until 11.00 am.

8. At 11.00 am the appellant again did not appear when the matter was called inside and outside the Court.  In reliance on the appellant’s non-appearance the Minister applied to dismiss the application.

9. Section 25(2B)(bb) of the Federal Court of Australia Act1976 (Cth) (“the Act”) relevantly provides:

   A single Judge (sitting in Chambers or in open court) or a Full Court may:
   (bb)     make an order that an appeal to the Court be dismissed for:
   …

   (ii)       failure of the appellant to attend a hearing relating to the appeal; …

10. Rule 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”) relevantly provides:

    (1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

    (a)       if the absent party is the appellant:

    (i)        the appeal be dismissed;
    …

11. Because of the appellant’s non-appearance I dismissed the appeal pursuant to s 25(2B)(bb)(ii) of the Act and under the Rules.

12. I have also had regard to s 37M of the Act which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. Having twice stood the matter down, adjourning the matter to another day due to the appellant’s non-appearance would have been contrary to s 37M, and the rights of other litigants to have their cases heard expeditiously.

13. Because my decision to dismiss the appeal is based on the appellant’s failure to attend the hearing it is unnecessary to descend to a consideration of the grounds of appeal.  Having said this, I am reinforced in my view that dismissal is appropriate by the fact that the appeal appears to have little prospect of success.  The materials in the Appeal Book indicate that the appellant failed to provide the Tribunal with documents to show that he was currently enrolled in a course of study or that he had an offer of enrolment in a registered course, and the appellant then failed to appear at the Migration Review Tribunal hearing.  While I have not had the benefit of submissions from the appellant, I can discern no jurisdictional error in the Tribunal’s decision to decide the application in his absence.  The learned Federal Circuit Court judge also found no jurisdictional error in the Tribunal decision and I can discern no appealable error in her Honour’s decision in that regard.

14. I made orders dismissing the appeal and requiring the appellant to pay the first respondent’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: 

Dated:       24 November 2015