Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 627
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 627
File number: PEG 279 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 5 August 2022 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06(1)(c) and r 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 5 August 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Mr A Shinnick Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 279 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAJVINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4.The applicant pay the first respondent’s costs fixed in the sum of $5,900.
5.Written reasons for judgment to 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 KENDALL:
BACKGROUND
This matter was listed before the Court for a final hearing at 10.00am on 5 August 2022. When the matter was called, there was no appearance by or for the applicant.
In the circumstances, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.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).
4. The applicant pay the first respondent’s costs fixed in the sum of $5,900.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court dismissed the matter for non-appearance.
BACKGROUND
Before the Court is an application for judicial review filed in the Perth Registry of this Court on 21 December 2021 (the “application”). That application was accompanied by an affidavit which was affirmed by the applicant on 20 December 2021 (and filed with this Court on 21 December 2021).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicant sought review of a decision made by the Administrative Appeals Tribunal on 1 December 2021.
On 15 March 2022, orders were made by Registrar van der Westhuizen in this Court programming the matter to a hearing on a date to be fixed.
On 1 April 2022, my chambers notified the parties that the matter had been listed for a hearing before this Court on 5 August 2022 at 10.00am.
On 29 July 2022, an affidavit of service of Andrew Shinnick (deposed on 28 July 2022) was filed with this Court (the “Shinnick affidavit”).
On 31 July 2022, the parties were reminded by my chambers of the date, time and location of the hearing. The parties were also given instructions on how to attend the hearing by video link using Microsoft Teams.
As outlined above, when the matter came before the Court (on 5 August 2022), there was no appearance by or for the applicant. Mr Shinnick appeared for the Minister.
Mr Shinnick took the Court through annexures to the Shinnick affidavit (comprising of correspondence from his office to the applicant serving various documents). That correspondence also put the applicant on notice that, in the event that he did not appear at the hearing listed on 5 August 2022, the Minister might seek to have the matter dismissed with costs (Shinnick affidavit, p 9).
The Shinnick affidavit was taken as read and in evidence.
Correspondence from my chambers outlined above was tendered and referenced as Exhibit 1.
The Court asked Mr Shinnick how the Minister wished to proceed in the circumstances.
Mr Shinnick advised the Court that the Minister sought to have the matter 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) (the “Rules”) and sought the Minister’s costs, fixed in the sum of $5,900.
Noting the correspondence contained in the Shinnick affidavit and Exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and advised of what he needed to do to participate in that hearing.
In relation to the costs order sought by the Minister, the Court determined that the amount sought was appropriate in the circumstances. The Minister’s written submissions were detailed and Mr Shinnick was prepared to make oral submissions at the hearing as required.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter for non-appearance and awarded costs to the Minister as outlined at [2] above.
The Court notes that the applicant can apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 August 2022
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