Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 54
•1 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 54
File number(s): MLG 531 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 1 February 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of India – refusal of Partner (Temporary) (class UK) (subclass 820) visa.
PRACTICE AND PROCEDURE – Adjournment – where no appearance by applicant – where applicant advised of change to contact details but did not file a Notice of Address for Service – where applicant has previously appeared at directions hearing programming matter for hearing – where applicant has been advised by email of final hearing – where repeat calls to applicant unsuccessful.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth), r.13.06(1)(c)
Migration Act 1958 (Cth), s.476Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556Division: Division 2 General Federal Law Number of paragraphs: 9 Date of hearing: 1 February 2022 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 531 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDRAJWINDER 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:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The originating application filed 16 March 2017 be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant pay the First Respondent’s costs in the sum of $7467 by 1 March 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 for judicial review filed 10 March 2017 under s 476 of the
Migration Act1958 (Cth) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively). The Tribunal Decision was dated
21 February 2017 and affirmed a 15 April 2014 decision of a delegate of the first respondent (“Delegate” and “Delegate’s Decision” respectively), then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse the applicant, Mr Indrajwinder Singh
(“Mr Singh”), a Partner (Temporary) (class UK) (subclass 820) visa (“Partner Visa”).
When the matter came before the Court today there was no appearance by or for Mr Singh and, consequently, Counsel for the Minister applied for the matter to be dismissed for
non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”).
The Court observes that this is a matter originally filed in the Melbourne Registry of the Court. It has been the subject of orders by both a Registrar and a Judge in the Melbourne Registry but for reasons which are not readily apparent the matter was never listed for hearing in the Melbourne Registry. It is well-known and documented that there are not insignificant delays in the hearing of migration matters in the Melbourne Registry of this Court: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren; Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev. In about June of 2021 this matter was transferred to the Perth Registry of the Court and listed before the Court, as presently constituted, for a directions hearing on 23 July 2021 by videolink.
At that directions hearing Mr Singh appeared with the assistance of a Punjabi interpreter.
At the directions hearing the Court made orders including orders that Mr Singh be able to file an amended application and written submissions, but he did not do so. Those orders specifically noted that the matter remain listed for hearing before the Court, as presently constituted,
on 1 February 2022 at 10.00am AWST/1.00pm AEDT.
As the Court indicated to Counsel for the Minister during submissions there was contact between Mr Singh and the presiding Judge’s Chambers in August of 2021,
subsequent to the directions hearing, with Mr Singh indicating that he had moved to
Western Australia. There was subsequently correspondence from the Perth Registry of this Court advising Mr Singh to file a new Notice of Address for Service. No new Notice of Address for Service was filed by Mr Singh.
Prior to the hearing commencing today Court staff endeavoured to contact Mr Singh on the mobile telephone number which is in the originating application but were unable to contact him. The Court staff did that because Mr Singh had not dialled into the hearing. The Court had advised Mr Singh of the details as to how that might be done in an email dated 27 January 2022.
When the matter was called there was no appearance for or by Mr Singh and,
in the circumstances, the Court adjourned briefly to allow a further attempt to be made to contact Mr Singh on the mobile telephone number which is in the originating application and which had been used previously in respect of the directions hearing in July 2021.
Again, there was simply no response from the mobile telephone number when it was rung.
In those circumstances, the Minister, as the Court has already indicated, seeks an order for dismissal for non-appearance. In the circumstances, the Court is satisfied that Mr Singh was properly on notice of the hearing today and that he has simply failed to appear.
Costs are sought in the sum of $7467 by the Minister, being the sum of costs applicable prior to the introduction on 1 September 2021 of the GFL Rules. There is no reason why that sum ought not to be awarded, this being a case where costs must inevitably follow the event.
Orders for dismissal for non-appearance and costs will be made accordingly.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 4 February 2022
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