Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 643
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 643
File number: MLG 3777 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 21 July 2023 Catchwords: PRACTICE AND PROCEDURE – application for dismissal 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) – where applicant properly advised of hearing through notice sent to his lawyer – where no appearance by or for applicant – where applicant has not complied with Court Order – application dismissed pursuant to r 13.06(1)(c). Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(c)
Migration Act 1958 (Cth) s 116
Division: Division 2 General Federal Law Number of paragraphs: 13 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz Lawyers ORDERS
MLG 3777 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
3.The applicant is to pay the first respondent’s costs fixed in the amount of $4,189.38.
THE COURT NOTES THAT:
A.In circumstances where the application was dismissed in the absence of the applicant, the applicant may apply to set aside the orders above under r 17.05(2)(a) of the Rules.
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
(Delivered ex tempore and revised from the transcript)JUDGE LADHAMS:
An application for an extension of time to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) is listed before the Court for hearing today. The Tribunal affirmed a decision made by a delegate of the Minister to cancel the applicant’s Temporary Work (Skilled) visa, pursuant to s 116 of the Migration Act 1958 (Cth).
The listing today is for the hearing of the extension of time application and, if that application is granted, the substantive judicial review application. There has been no appearance by or on behalf of the applicant at the hearing today, and the Minister seeks an order that the application be dismissed, 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). I am satisfied that it is appropriate to make that order. In explaining why that order is appropriate, I propose to set out the procedural history of this matter in some detail.
The application to this Court was filed on 12 December 2018. The applicant was self-represented at the time that he filed his application. The applicant then filed a notice of address for service on 27 February 2020, indicating that he is now represented by Imran Warraich of Huk Legal. No further documents have been filed by or on behalf of the applicant in the almost three and a half years since Huk Legal went on the record for the applicant.
On 27 October 2020 a Registrar of this Court made an Order by consent to progress this matter to hearing. Pursuant to that Order, the applicant was required to file and serve any amended application, any supplementary court book, further evidence in relation to his extension of time application and written submissions 28 days before the hearing. When the hearing was set down for 21 July 2023, the applicant’s documents became due to be filed on 23 June 2023. The applicant did not file any documents in compliance with the Order. I note that the parties were advised of the listing for hearing today by email sent by my associates on 12 May 2023, that is, six weeks before the applicant’s documents were due to be filed and 10 weeks before the hearing today.
In the Court’s view, the applicant has had ample notice to file his documents and prepare for the hearing today. In circumstances where the applicant was represented by a lawyer and failed to file documents in accordance with the Court’s Order, my associates wrote to the parties by email on 3 July 2023, noting that the applicant had not complied with Court’s Order and asking whether the applicant intended to seek leave to file any amended application and submissions ahead of the hearing date. That email also asked the parties to confirm who would be appearing at the hearing.
On 11 July 2023 Mr Warraich replied to this email on behalf of the applicant and indicated that he would appear at the hearing today. He also sought a further five days to file submissions on behalf of the applicant. In response, my associates indicated to him that he should seek the consent of the Minister in the first instance, in relation to his request for more time to file submissions. The Court has not received any further communication from the applicant’s lawyer since that time, and no submissions or consent orders have been provided to the Court. Mr Anastasi, who appeared on behalf of the Minister at the hearing today has indicated that he has not received any relevant communication from Mr Warraich or another lawyer on behalf of the applicant.
When it became apparent that there was no person ready to appear on behalf of the applicant at the hearing today, my associates made three attempts to contact Mr Warraich on the mobile phone number provided in the notice of address for service filed on behalf of the applicant. Those calls were not answered. My associate also obtained a phone number for Huk Legal from the internet and attempted to call Huk Legal. Huk Legal advised that Mr Warraich was “not in the office today” and that there was no person available to appear on behalf of the applicant at the hearing today.
I am satisfied that the applicant was appropriately advised of the hearing today through the email sent on 12 May 2023, with that email being addressed to the email address set out in the notice of address for service filed on 27 February 2020. I am also satisfied that Mr Warraich personally was aware of the hearing date today, because he indicated to the Court on 11 July 2023 that he would be appearing at the matter today on behalf of the applicant.
In circumstances where the applicant has been properly notified of the hearing today, where no explanation has been provided to the Court to explain the applicant’s non-appearance, and where there is no appearance by or on behalf of the applicant at the hearing today, I am satisfied that it is appropriate to dismiss this application pursuant to r 13.06(1)(c) of the GFL Rules.
The Minister also seeks an order for costs in the amount of $7,509. This amount is sought on the basis that the Minister has had to do the same type of work that is required for a final hearing, even though the application before the Court is, in the first instance, for an extension of time. Mr Anastasi acknowledges that the scale amount for an extension of time application is $4,189.38.
In my view, given that this matter is, in the first instance, an extension of time application, the scale cost amount for matters resolved at an interlocutory hearing, namely $4,189.38 is more appropriate.
Although I acknowledge that the work that the Minister has had to do is substantially the same as the work that would be required for a final hearing, it is still the case that this is an extension of time application and the level of work required, at least insofar as it appears from the Court record, does not reflect a level of work that would warrant departure from the Court’s scale.
I therefore make the following orders in this matter:
(1)The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
(2)The application is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
(3)The applicant is to pay the first respondent’s costs fixed in the amount of $4,189.38.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 August 2023
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