Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 314
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 314
File number(s): MLG 522 of 2018 Judgment of: JUDGE FORBES Date of judgment: 2 May 2022 Catchwords: MIGRATION – Application dismissed due to non-attendance Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rule 13.06, 17.05
Migration Act 1958 (Cth), s 476
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 2 May 2022 Place: Melbourne Applicant No appearance Counsel for the First Respondent: Mr Cunynghame Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 522 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATBIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
2 MAY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The Applicant’s Application for Judicial Review filed on 1 March 2018 is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.The Applicant pay the Minister’s costs fixed in the sum of $5,000.
AND THE COURT NOTES THAT:
A.Pursuant to Rule 17.05(2)(a), the Court or a Registrar may vary or set aside a judgement or order made in the absence of a party.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE FORBES
This matter involves an application by Satbir Singh under section 476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Administrative Appeals Tribunal made on 15 February 2018. The application was filed on 1 March 2018 and seeks judicial review of the Tribunal’s decision which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) Visa.
The application for judicial review was supported by an affidavit of the applicant affirmed on 13 October 2016. That affidavit annexed a copy of the Tribunal’s decision record.
On 6 April 2018 the first respondent, the Minister, filed a response seeking an order that the application be dismissed and that the applicant pay the first respondent’s costs of the proceedings. The Minister contends in that response that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal dated 15 February 2018.
On 23 January 2019 a Registrar of this Court made orders to enable this matter to be prepared for trial. Those orders required the Minister to file and serve a court book of relevant documents by 6 February 2019. The applicant was afforded an opportunity to file and serve various documents 28 days before the final hearing, including any amended application, any affidavits, a supplementary court book and any written submissions. The Minister was also ordered to file and serve any written submissions or further affidavits 14 days before the hearing date.
The initial directions required that the matter be listed for hearing in 2021 on a date to be advised before Judge Mercuri.
In accordance with the Court orders, a court book was filed by the Minister’s solicitors on
31 January 2019.
The proceeding has subsequently been docketed to me. It is not been previously listed for hearing.
On 4 March 2022 the Court informed the parties that the matter had been listed before me for final hearing at 2.15pm today, 2 May 2022. A copy of the email listing the matter for hearing before me was sent to the email address identified by the applicant on each of his initial application and supporting affidavit.
There is no indication that that notification was not received at the email address identified.
On 12 April 2022 an outline of submissions was filed on behalf of the Minister. That outline again seeks orders that the application be dismissed and that the applicant pay the Minister’s costs. The outline contends that each of the 5 grounds relied upon by the applicant is misconceived or lacking in merit and did not identify any jurisdictional error in the Tribunal’s decision.
On 22 April 2022 the Court informed the parties that the hearing would be conducted in person at the Commonwealth Law Courts building at 305 William Street Melbourne. The Court’s email was sent to the Minister’s solicitors and a copy was also forwarded to the applicant at the email address specified on his application and affidavit. Again, there is no indication that that communication was not received by the applicant.
Subsequent communications to the Court confirmed the preparedness of the Minister’s representative to appear in person. However, there has been no response from the applicant.
On 27 April 2022 Mr Jeremy Hutton, a solicitor employed by Sparke Helmore, the Minister’s solicitors, filed an affidavit deposing to searches undertaken by a legal officer of the Department on 26 April 2022 regarding the current whereabouts of the applicant. That affidavit annexes screenshots from the Integrated Client Services Environment (ICSE) records and a movement history obtained from the Department’s Client Search Portal (CSP). The ICSE records reveal that the applicant is recorded as being “Offshore” and the CSP records show the last movement as being on 14 February 2022 in the direction “Departure”. Mr Hutton deposes that those records cause him to believe that the applicant is no longer in Australia.
Further, the ICSE records reveal that the WE-050 Bridging Visa held by the applicant has ceased and that the applicant does not currently hold any Australian Visa which would permit re-entry into the country.
The matter was listed at 2:15pm for hearing before me today.
Mr Cunynghame appeared for the first respondent. The applicant was not present in Court at the commencement of the hearing. I caused the applicant to be called outside the Court room and my associate reported that there was no appearance by or on behalf of the applicant.
By reason of the non-attendance, the Minister made an application for the application to be dismissed pursuant to rule 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules).
Out of an abundance of caution, I stood the matter down for approximately 10 minutes.
At 2.40pm, there was still no appearance by the applicant.
By reason of the applicant’s non-attendance for the hearing of his application and based on the Minister’s evidence that the applicant is no longer in the country with no visa authorising
re-entry, I will order that the applicant’s application be dismissed and that the applicant pay the minister’s costs in the sum of $5,000.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Nada Govedarica
Dated: 2 May 2022
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