Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 413
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 413
File number(s): PEG 103 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 19 May 2022 Catchwords: MIGRATION – Temporary Business Entry 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), r 13.06(1)(c) ad 17.05(2)(a)
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 19 May 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 103 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARAM PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 MAY 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 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).
3.The applicant pay the first respondent’s costs fixed in the sum of $5,900.
4.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:
INTRODUCTION
This matter was listed before the Court for a directions hearing and a final hearing at 12.00pm on 19 May 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 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).
3. The applicant pay the first respondent’s costs fixed in the sum of $5,900.
4. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 4 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 25 May 2021 (the “application”). The application was accompanied by an affidavit that was affirmed by the applicant on 24 May 2021 and filed on 25 May 2021.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 11 May 2021.
On 1 July 2021, orders were made by Registrar van der Westhuizen in this Court programming the matter to a final hearing at 10.00am on 25 January 2022.
On 2 May 2022, my chambers notified the parties that the matter had been re-listed for a final hearing at 12.00pm on 10 May 2022.
On 5 May 2022, my chambers notified the parties that the hearing listed on 10 May 2022 was vacated and the matter was re-listed for a final hearing at 12.00pm on 19 May 2022. The parties were also advised that the hearing would take place via video link.
On 13 May 2022, the parties were reminded by my chambers of the date, time and location of the hearing and provided with instructions for attendance by video link using Microsoft Teams.
On 17 May 2022, the applicant contacted my chambers requesting that the hearing be postponed due to a “medical condition”. The applicant explained that he was “going through depression and stress due to family issues”. He also attached a letter from his doctor dated 16 May 2022. That letter detailed some of the applicant’s health concerns and indicated that the applicant needed more time to prepare for his matter.
On 17 May 2022, my chambers contacted Mr Shinnick, representative for the first respondent (the “Minister”) seeking advice as to whether the Minister would agree to an adjournment of the matter in circumstances where no application in a case had been filed by the applicant.
On 18 May 2022, Mr Shinnick advised that the Minister opposed the request for an adjournment for the following reasons:
(a)the application has been on foot since 25 May 2021 and the applicant has had sufficient time to prepare for the hearing (having received the Minister’s submissions on 24 December 2021);
(b)the applicant has not engaged in any substantive way in the Court process since filing his application, for example he did not file any written submissions by 28 December 2021, as contemplated by the orders of Registrar van der Westhuizen made on 1 July 2021;
(c)the applicant has not brought these concerns to the Court’s attention until two days prior to the hearing;
(d)the issues raised do not provide a sufficient explanation for the need to adjourn, and do not adequately explain why the applicant cannot attend the hearing in this matter with reasonable adjustments made if necessary;
(e)the evidence does not provide any indication of when the applicant may be ready to attend a hearing in this matter and it is for the applicant to prosecute his application in a timely manner; and
(f)there is no merit to the substantive application and an adjournment would be futile.
It is noted that Mr Shinnick’s email was also sent to the applicant.
On 18 May 2022, my chambers contacted the parties to advise that, in light of the recent correspondence received from the parties, the Court considered it appropriate that the matter be listed for a directions hearing (as well as a final hearing on 19 May 2022 at 12.00pm) to determine if the matter could proceed.
The parties were advised, in that email correspondence, that the purpose of the directions hearing was to allow the Court to have a conversation with the parties about what appeared to be a request for an adjournment. The parties were told that, should the Court “determine that the matter cannot proceed to a final hearing, the hearing will be vacated and the matter re-listed for a final hearing at a later date”. The parties were also advised that, in the event that the Court was satisfied the matter could proceed, the matter would be heard immediately following the directions hearing. The parties were again provided with instructions for attendance via video link.
On 19 May 2022, on the morning of the directions hearing, the applicant again contacted my chambers. He indicated that he would not be able to attend the hearing as he could not understand and answer any questions. The applicant then offered a detailed overview of his migration history and the nature of his concerns with the Tribunal’s approach and decisions, and his concerns with the work undertaken by his former migration agent. The summary provided by the applicant was detailed, well written and clear. He concluded by stating:
It is my humble request to you to please give me a chance for another nomination or any supporting documents to provide in my current case as this is my only hope to get my life on track and make a better career.
My Associate in chambers responded to that correspondence as follows:
Thank you for your email. I have brought your concerns to the attention of His Honour Judge Kendall.
His Honour is not unsympathetic to the concerns you have raised and the Court does what it can do to assist self-represented applicants. While Court procedures can undoubtedly prove complex and confusing for applicants, there are nonetheless procedures that need to be followed.
The purpose of the directions hearing is to discuss with you the nature of your request for an adjournment and to determine whether the matter should be adjourned. I refer you to my previous correspondence (copy attached for your reference) as to how you can attend that directions hearing.
No further correspondence was received from the applicant.
Later that day, at 12.00pm on 19 May 2022, the matter was called for a directions hearing and final hearing. Mr Shinnick appeared for the Minister. Unfortunately, there was no appearance by or for the applicant.
Mr Shinnick took the Court through correspondence from his office to the applicant serving various documents and advising that, in the event that the applicant did not attend the hearing, the Minister would seek to have the matter dismissed and would seek costs.
That correspondence, together with the other correspondence 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 that the Minister sought for the application to 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) (the “Rules”). He also sought the Minister’s costs, fixed in the sum of $5,900.
Noting the correspondence tendered as exhibit 1, the Court was satisfied that the applicant had been properly notified of the hearing date and time and of what he needed to do to participate in that hearing. Unfortunately, he chose not to attend. The Court was also of the view that the costs sought by the Minister were appropriate in the circumstances of this case – the Court noting, in particular, the preparation required in drafting the Minister’s written submissions and the work required by Mr Shinnick in preparation for the directions hearing and final hearing.
CONCLUSION
In the circumstances, the Court made orders dismissing the matter for non-appearance. The Court also awarded costs to the Minister (as per [2] above).
It is noted, for the applicant’s sake, that he may apply to have his application reinstated pursuant to r 17.05(2)(a) of the Rules.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 26 May 2022
0
0
0