Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 847
•2 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 847
File number(s): SYG 792 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 2 September 2024 Catchwords: MIGRATION – Judicial Review – Decision of the Administrative Appeals Tribunal – Student Visa (Subclass 500) – Citizen of India – Dismissal for non-appearance – Emails from Applicant Seeking Adjournment - No explanation for non-appearance.
PRACTICE AND PROCEDURE - Dismissal for non-appearance
Cases cited: SZRVA v Minister for Immigration [2019] FCA 630 Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 2 September 2024 Solicitor for the Applicant: No appearance Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 792 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the Minister for Immigration & Multicultural Affairs dispensing with the need to file any further documents in that regard.
2.The application filed 30 March 2020 is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.The applicant pay the first respondent’s costs fixed in the sum of $6,000.
THE COURT NOTES THAT:
A.The applicant can apply to have the application reinstated pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE SKAROS:
Before the Court today is an application filed with this Court seeking a review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 February 2020 affirming the Department’s decision to refuse to grant the applicant a subclass 500 student visa.
In the application to this Court the applicant provided details of his email address being the Gmail address noted in correspondence.
Background & Applicant’s Adjournment Requests
On 26 March 2024 Orders were made by a Registrar of the Court indicating that this matter would be listed for final hearing before a judge on a date to be advised. Notation D to those Orders noted that the applicant, who had complained about his lawyer (who was not on record in these proceedings), was encouraged to consider obtaining legal advice from a different lawyer.
On 1 August 2024 the parties were notified by email that the matter was listed for a final hearing on 15 August 2024. On 2 August 2024 the applicant sent an email to the Court in which he requested an adjournment of the hearing on the basis of an inability to obtain legal representation due to financial hardship. On 5 August 2024 an email was sent to the parties advising that due to changes in the judicial calendar the final hearing would be held on 2 September 2024.
On 6 August 2024 the Court received an email from the applicant. The Minister was not copied in on that email. In that email the applicant requested another adjournment of the hearing again on the basis of his inability to obtain legal representation due to financial hardship. On 19 August 2024 my Associate forwarded the applicant’s correspondence to the Minister’s representative seeking the Minister’s position on the adjournment request.
On 26 August 2024 the Court received correspondence from the Minister’s representative advising that the Minister opposed the adjournment requested. The Minister noted that the matter had been on foot for over four years and that there is no right to representation before the Court citing SZRVA v Minister for Immigration [2019] FCA 630.
The Court considered the applicant's adjournment request and the Minister's reasons for opposing that request. The Court accepts the Minister’s submission that the matter has been on foot for over four years, and the Court considers that the applicant has had ample time to obtain legal representation.
The applicant has been on notice since the Orders of the Registrar, which were made on 26 March 2024, that the matter would be listed for final hearing before a judge. The applicant was encouraged by the Registrar to obtain legal advice or representation from a different lawyer, given the difficulties that he had expressed that he was having with his then lawyer, whose name was Pete, whom the Court noted was not on the record in the proceedings.
It appears to date that the applicant has not been able to secure representation due to financial hardship and there is limited evidence before the Court which suggests that he would have had the funding to secure legal representation if a short adjournment was granted. Further, if the Court were to grant an adjournment in this case, then the present hearing time would not have been allocated to another applicant who may have also been waiting for many years to have their matter heard.
Being unrepresented, the Court would have been alert to any possibility of error in the Tribunal’s decision, but for reasons unexplained the applicant has decided not to appear today.
Having regard to all of the circumstances, the Court is not satisfied that it is an appropriate course of action to grant the adjournment sought.
Non-appearance & Dismissal Application
The applicant has been on notice that the hearing is proceeding today. He was advised that it would proceed as normal on 2 September 2024 at 10 am in person at the Parramatta Registry.
When the matter came before the Court today there was no appearance on or behalf of the applicant, and the matter was called outside the courtroom three times, but there was still no appearance for the applicant. The time is now 10:27 am and the applicant has still not appeared before this Court.
Solicitor for the Minister, Mr Dennis, appeared on behalf of the Minister. Mr Dennis advised that the Minister sought to have the matter dismissed on the basis of the applicant's non-appearance, pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia Rules 2021, and he also sought the Minister's costs in the fixed sum of $6,000.
The Court has considered the evidence relied upon by the Minister in support of their application for dismissal for non-appearance, including the notice sent by email to the parties on 5 August 2024 notifying them of the date, time and location of the hearing which was to be held in person at the Parramatta Registry. The Minister tendered that email in support of the dismissal application.
The Court is satisfied on the evidence before it that the applicant has been properly notified of the hearing date and time. It is also satisfied that the applicant was properly informed that a failure to appear could result in the matter being dismissed with costs.
Costs
In relation to the costs order sought on behalf of the Minister, the Court determines that the amount sought is appropriate in the circumstances. The Minister's written submissions were detailed, and Mr Dennis was prepared to make oral submissions at today's hearing.
Conclusion
For the foregoing reasons the Orders at the forefront of these Reasons will be made.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Skaros delivered on 2 September 2024. Associate: I
Dated: 6 September 2024
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