Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 139
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 139
File number(s): MLG 2402 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 2 March 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – Student (Temporary) class TU Higher Education Sector visa – decision to affirm cancellation of visa
PRACTICE AND PROCEDURE – Where no appearance by applicant – where applicant has active or current contact details with the Court and has been contacted on these but no response received – where multiple calls made to existing contact number –dismissal for non-appearance
Legislation: Migration Act 1958 (Cth) ss 476, 477 Cases cited: AFP21 v Minister for Immigration and Citizenship [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: 6 Date of hearing: 2 March 2022 Place: Perth Applicant: No appearance Counsel for the First Respondent: Ms L Mills Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2402 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAKHBEER 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:
2 MARCH 2022
THE COURT ORDERS THAT:
1.The Applicant’s application under s 477(2) of the Migration Act 1958 (Cth) filed on 9 November 2017 for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be dismissed for non-appearance.
2.The Applicant pay the First Respondent’s costs in the sum of $7,853 by 2 April 2022.
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
Before the Court is an application under s 477(2), of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, Mr Lakhbeer Singh (“Mr Singh”), filed 9 November 2017 for an order for an extension of time (“Extension of Time Application”) within which to make an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 29 May 2017. That Tribunal Decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to cancel Mr Singh’s Student (Temporary) class TU Higher Education Sector visa (“Student Visa’) on 8 November 2016
The Extension of Time Application was filed in the Melbourne Registry of this Court in 2017, but was not heard in that Registry where delay in the hearing of migration judicial review applications is well-known and acknowledged by the Court: AFP21 v Minister for Immigration and Citizenship [2021] FCCA 1322 at [25] per Chief Judge Alstergren; see also Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev. This matter was accordingly transferred to the Perth Registry in late August of 2021, and was subject to a directions hearing before the presently presiding Judge on 3 September 2021. The Court notes that that directions hearing was the subject of a Notice of Listing sent to Mr Singh at the email address specified in the Extension of Time Application, but that at the directions hearing there was no appearance by Mr Singh.
The orders which were made on 3 September 2021 (“Court’s Orders”) provided for Mr Singh to file and serve any amended application, any Supplementary Court Book, and written submissions. Mr Singh has not done so. The Court also notes that Order 2(c) of the Court’s Orders listed the matter for hearing today and that there was a note to the Court’s Orders indicating that if Mr Singh did not appear at the hearing today, the matter may be dismissed for non-appearance. The Court notes that there has been no communication from Mr Singh with the Court since that time. Mr Singh was sent email correspondence indicating that the matter was to be heard today at the email address specified in the Extension of Time Application.
Mr Singh has not called the Court in order to be linked in to today’s hearing via video link. The Court is advised that two attempts were made to call him prior to today’s hearing commencing, both unsuccessful. When the hearing commenced the Court almost immediately adjourned the matter and the Court is advised that a further three attempts to call Mr Singh were unsuccessful. Thus, Mr Singh has been called a total of five times without success. The Court is satisfied that the Court’s Orders were sent by email to the email address specified by Mr Singh in the Extension of Time Application, and the Court is also satisfied that on 18 February 2022 the parties were sent by the Court a Notice of Listing and instructions on how to appear by video link, and that the correspondence was sent to Mr Singh at the email address specified in the Extension of Time Application.
The Court also notes that Ms Mills, who appears for the Minister, relies upon the affidavit of service of Mr Jackson Clyde Macaulay, affirmed 25 February 2022, which:
(a)adverts to the email sent to Mr Singh by the Court in relation to the Notice of Listing of 25 August 2021 for the directions hearing on 3 September 2021;
(b)notes that the Court sent the Court’s Orders to the parties;
(c)says that on 21 January 2022 the Minister’s solicitors prepared proposed consent orders in relation to an extension of time for the filing of certain documents in this matter, and that they were sent to the email address for Mr Singh specified in the Extension of Time Application, but that no response was received from Mr Singh; and
(d)says that on 17 and 24 February 2022 the Minister’s submissions and authorities, copies thereof, were served on Mr Singh at the email address specified in his Extension of Time Application, and, again, no response was received by Mr Singh.
The Court is, in the circumstances, satisfied that Mr Singh has been served and/or sent and received the various documents that the Court has adverted to and that, consequently, Mr Singh was on notice of the hearing today and has not attended. In those circumstances, it is appropriate that the Extension of Time Application be dismissed by reason of Mr Singh’s non-appearance and with orders that Mr Singh pay costs in the sum sought by the Minister. The Court will therefore make orders accordingly.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 4 March 2022
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