Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 311
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 311
File number: MLG 2812 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 29 April 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for 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 (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.06(1)(c)
Migration Act 1958 (Cth), s 477
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 28 April 2022 Place: Perth Applicant: No appearance by or for the applicant Counsel for the First Respondent: Ms M Richardson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2812 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALDEEP 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:
28 APRIL 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 $5,000.
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 final hearing on 28 April 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 $5,000.
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 Melbourne Registry of this Court on 21 December 2017 (the “application”). The application was accompanied by an affidavit, deposed and filed by the applicant on 21 December 2017.
The application seeks review of a decision made by the Administrative Appeals Tribunal on 14 June 2016. As per s 477 of the Migration Act 1958 (Cth), the application should have been filed 35 days from the date of the Tribunal’s decision (that is, 19 July 2016). The application was thus filed 520 days outside of the requisite time limit.
On 19 September 2018, orders were made by Registrar Allaway in this Court programming the matter to a hearing on 25 August 2021.
On 16 October 2019, a Notice of Adjournment was sent to the applicant by the Court vacating that hearing.
On 9 November 2021, the matter was listed for a directions hearing before Judge Lucev scheduled for 15 November 2021. The parties were notified of that directions hearing by Judge Lucev’s chambers.
The applicant appeared at that directions hearing via video link and further programming orders were made by Judge Lucev. Relevantly, His Honour listed the matter for an interlocutory hearing of an extension of time application (and final hearing if necessary) on 28 March 2022.
On 6 March 2022, my chambers notified the parties that the hearing listed on 28 March 2022 was vacated and re-listed for hearing at 2.00pm (AEST) / 12.00pm (AWST) on 28 April 2022.
On 22 April 2022, the parties were reminded by my chambers of the date, time and location of the hearing and provided instructions for attendance by video link.
On 27 April 2022, my chambers was contacted by the applicant via email. That email provided:
hi
This time i am overseas. Due to serious and severe conditions of my mother’s health, I couldn’t attend the court.
Later that same day (on 27 April 2022), my chambers responded to the applicant, advising him that he had been provided with a link to appear via video and could do so. The email from my chambers also explained that, if the applicant was seeking an adjournment, an application in a proceeding needed to be filed. The applicant was given detailed instructions about what was required of him and a link to all relevant forms. Further, the email confirmed that, without more, the matter remained listed for hearing at 2.00pm (AEST) / 12.00pm (AWST) on 28 April 2022 and would occur via video.
All relevant correspondence from my chambers to the applicant (dated 6 March 2022, 22 April 2022 and 27 April 2022) in this regard was tendered and referenced as Exhibit 1.
On 28 April 2022, the matter was called for a hearing of the application for an extension of time and (if required) final hearing. Ms Richardson appeared for the Minister. Unfortunately, there was no appearance by or for the applicant.
The Court asked Ms Richardson how the Minister wished to proceed in the circumstances.
Ms Richardson advised that she 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 $5,000. Ms Richardson also tendered correspondence from her office to the applicant in which the Minister advised the applicant that, if he did not appear at the hearing, the Minister would seek for the application to be dismissed pursuant to r 13.06(1)(c) of the Rules and would seek a costs order (Exhibit 2).
Noting the correspondence (and exhibits) outlined above, 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. The applicant was also aware that if he did not appear the Minister would seek dismissal and a costs order.
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.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 April 2022
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