Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 100
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 100
File number(s): MLG 165 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 14 February 2023 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – refusal of student visa
PRACTICE AND PROCEDURE – Where no appearance by applicant at final hearing – where applicant advised of final hearing by email – where applicant had appeared at directions hearing – where calls to applicant unanswered – where no attempt to join videolink
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.01, 13.06 Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Division: Division 2 General Federal Law Number of paragraphs: 5 Date of last submission/s: 14 February 2023 Date of hearing: 14 February 2023 Place: Perth Applicant: No appearance Counsel for the First Respondent: Mr M Daly via CISCO Webex Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 165 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHWINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
14 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 23 January 2018 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).
3.The applicant pay the first respondent’s costs in the sum of $4,000 by 14 March 2023.
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 transcript)JUDGE LUCEV
This matter came on for hearing this morning and the applicant, Mr Sukhwinder Singh (“Mr Singh”), has not appeared. The application before the Court is an application for judicial review (“Judicial Review Application”) of an Administrative Appeals Tribunal decision (“Tribunal” and “Tribunal Decision” respectively). The Judicial Review Application was filed in the Melbourne Registry of the Court on 23 January 2018. The Tribunal Decision which is sought to be reviewed was one which affirmed a delegate’s decision (“Delegate” and “Delegate’s Decision” respectively) to refuse Mr Singh a temporary student visa (“Student Visa”).
Delays in the hearing of judicial review migration cases in the Melbourne Registry are notorious and the Court simply refers to the judgments in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7]-[8] per Judge Lucev. Although the matter was filed in January 2018, there was no first court date in Melbourne until October 2018 and although the matter was ordered to be heard on a date to be fixed before Judge Riethmuller, that did not occur. In November 2021 the matter was allocated to a Judge in the Perth Registry. A directions hearing was held on 15 November 2021 and orders (“November 2021 Orders”) were made which saw the matter listed for final hearing before the Court in Perth via video link from Melbourne, the listing being for 16 August 2022. On 25 July 2022 the parties were advised that because of judicial hearing workloads and outstanding reserved judgments, that that date of 25 July 2022 was to be changed to today’s date for the final hearing.
In the November 2021 Orders referred to above, the Court ordered that the Mr Singh file and serve any amended application, affidavits, supplementary court book and written submissions by 14 June 2022. Mr Singh did not do any of those things. On 8 February 2023 Mr Singh forwarded to the Court by email a Notice of Discontinuance. That came from the email which is the email for notification to Mr Singh, both in the originating application and in a notice of address for service subsequently filed. The Notice of Discontinuance was not accepted for filing in circumstances where it was sent to the Court less than 14 days before the listed hearing, and the Court refers to r 13.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”). Instead, the parties were advised by Chambers on 8 February 2023 that they might seek to provide draft consent orders with respect to the granting of leave for a Notice of Discontinuance to be filed and court costs, but if the parties could not agree then the hearing listed for today would proceed. As it has transpired, there has been no further correspondence from Mr Singh since the endeavour to provide a Notice of Discontinuance and no consent orders were forthcoming, in circumstances where there have been emails between the Minister and Mr Singh. The Court notes in that regard the affidavit of Mr Lachlan Glass, affirmed 13 February 2023, which the Court will take as having been filed in Court today, indicating that there was an email to Mr Singh on 9 February 2023, that is, last Thursday, enclosing draft consent orders to grant leave to discontinue and for Mr Singh to pay the Minister’s costs. A further email in similar terms was seemingly sent yesterday, that is, 13 February 2023. Those emails do not appear to have elicited any response from Mr Singh.
In all of the above circumstances, the Court is satisfied that Mr Singh has had ample opportunity to either consent to filing consent orders allowing for the discontinuance, or to appear today.
In the absence of an appearance today by Mr Singh and having regard to the above matters and circumstances, it is appropriate that there be an order for dismissal for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules. There will also be orders for a name change for the Minister, and for Mr Singh to pay the Minister’s costs, in the sum sought by the Minister, namely $4,000.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 February 2023
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