Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 685
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 685
File number(s): ADG 12 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 2 August 2023 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) class TU visa.
PRACTICE AND PROCEDURE – Where no appearance by applicant at directions hearing – dismissed for non-appearance.
Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), r 17.05(2)(a)
Cases cited: BPU15 v Minister for Immigration & Anor [2019] FCCA 126 Division: Division 2 General Federal Law Number of paragraphs: 12 Date of last submission/s: 28 July 2023 Date of hearing: 28 July 2023 Place: Perth (by video-link to Adelaide) Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms M Baras-Miller Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 12 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGBIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
28 july 2023
THE COURT ORDERS THAT:
1.The originating application filed on 9 January 2020 be dismissed for non-appearance pursuant to r 13.06(1)(c) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The applicant pay the First Respondent’s costs in the sum of $2,100 by 28 August 2023.
3.The reasons for judgment in relation to orders 1 and 2 be published from Chambers at a later date.
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).
REASONS FOR JUDGMENT
JUDGE LUCEV
This is an application under the Migration Act 1958 (Cth) for judicial review (“Judicial Review Application”), by the applicant, Jagbir Singh (“Mr Singh”), filed in the Adelaide Registry of this Court on 9 January 2020. The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision”).
The grounds of the Judicial Review Application take issue with the Tribunal Decision, but do not allege jurisdictional error in the Tribunal Decision. The Response filed by the Minister on 23 January 2020 seeks dismissal of the Judicial Review Application on the grounds that the Tribunal Decision is not affected by jurisdictional error.
By way of procedural history, following the filing in the Adelaide Registry on 9 January 2020 the matter was the subject of a consent order made by a Registrar of the Court in the Adelaide Registry on 17 March 2020 in which the usual orders were made for filing and service of a Court Book, filing and service of any amended Judicial Review Application and additional materials, and an order that the matter be listed for final hearing on a date to be advised. Orders were also made with respect to the filing of submissions prior to the final hearing.
For reasons which are not apparent from the electronic court file the matter was not listed for final hearing in accordance with the Registrar’s orders. In February 2023 the matter was allocated to the now presiding Judge in the Perth Registry of the Court, and on 1 March 2023 the matter was listed for a directions hearing on 29 March 2023 by video-link between Perth and Adelaide.
In March 2023 Mr Singh was sent a confirmation of listing to the email address for service (“Service Address”) set out in the Judicial Review Application, giving details as to how Mr Singh could join the directions hearing on 29 March 2023 by video-link. On 27 March 2023 the parties were advised that the directions hearing on 29 March 2023 had been vacated and that a further directions hearing had been listed in person in Adelaide before the now presiding Judge on 5 June 2023 with a Punjabi interpreter available to assist Mr Singh.
On 5 June 2023 although a Punjabi interpreter had been booked for three directions hearings in person in the Adelaide Registry on that day, no Punjabi interpreter joined the hearing, and none was available at short notice to assist the Court. Consequently, on 5 June 2023 the parties were advised that the directions hearing had been relisted to 28 July 2023 by video-link between Perth and Adelaide (“Notice of Relisitng”). The Notice of Relisting was sent to Mr Singh’s Service Address.
On 21 July 2023 Mr Singh was sent a confirmation of the Notice of Relisting with instructions as to how to join the video-link hearing. The confirmation was sent to Mr Singh’s Service Address.
On 28 July 2023 Mr Singh did not join the directions hearing by video-link notwithstanding that he had been sent directions giving him instructions as to how to join the directions hearing. Court staff then endeavoured to call him on a mobile telephone number which appears on the electronic court file. Three such calls went unanswered.
The Court is satisfied that the Notice of Relisting for the 28 July 2023 directions hearing was sent to the Service Address, as nominated by Mr Singh in the Judicial Review Application.
In circumstances where Mr Singh did not seek to join the directions hearing by video-link, and the Court has endeavoured to contact him on a mobile telephone number which appears on the electronic court file, without success, the Court considers that appropriate steps have been taken to inform Mr Singh of the directions hearing, and were taken on 28 July 2023 when he failed to appear by video-link, to contact him on his mobile telephone to facilitate his joining the directions hearing.
In the circumstances, it is appropriate that the Judicial Review Application be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) and that there be an order for costs in the amount sought by the Minister of $2100. Orders were made accordingly on 28 July 2023.
The Court notes that an application dismissed in the absence of a party may be the subject of an application to set it aside pursuant to r 17.05(2)(a) of the GFL Rules which allows the Court or a Registrar to set aside an order made in the absence of a party. The factors to be considered by the Court on such an application, and some relevant cases, are set out in BPU15 v Minister for Immigration & Anor [2019] FCCA 126 at [5]-[7] per Judge Lucev.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 2 August 2023
0