Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 281
•15 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 281
File number(s): MLG 163 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 15 November 2021 Catchwords: MIGRATION – Judicial review application – citizen of India – subclass 572 student visa – applicant offshore – application for discontinuance sent but not filed
PRACTICE AND PROCEDURE – dismissal for non-appearance
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Act 1958 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 15 November 2021 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: T Creedon Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 163 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIJAY PARTAP 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:
15 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The originating application dated 23 January 2018 be 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).
3.
The Applicant pay the First Respondent’s costs in the sum of $2,110 by
15 December 2021.
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
This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision to refuse the applicant, Mr Vijay Partap Singh (“Mr Singh”) a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa.
The application was electronically filed on 25 December 2017 in the Melbourne Registry of this Court, and went before a Registrar of the Court in the Melbourne Registry on
3 October 2018, at which time it was listed for hearing on 6 May 2019, before Judge Wilson, as his Honour then was.
Consequent upon Judge Wilson’s appointment to the Family Court of Australia, the parties were advised on 3 April 2019 that the matter was being adjourned sine die. Nothing further occurred in relation to this matter until it was allocated to the Perth Registry of the Court to be heard by a Perth judge in or about October of this year. And it has subsequently been listed for directions today.
In relation to today, Ms Singh has been called upon an Australia mobile number, which is the telephone number given for contact with him and by him in relation to this application.
Unsurprisingly, perhaps, in circumstances that the Court will come to, there has been no response on that particular number. The Court notes that an affidavit has been filed and read by the deponent, Shauna Lee Roeger (“Ms Roeger”), affirmed on 12 November 2021.
Ms Roeger is a lawyer with the Australian Government Solicitor’s Office in Melbourne, having the usual carriage of the matter on behalf of the Minister of Immigration, Citizenship,
Migrant Services and Multicultural Affairs (“the Minister”).
From Ms Roeger’s affidavit, it is evident from the Department of Home Affairs database that Mr Singh departed Australia on 25 December 2019, that Mr Singh has not returned to Australia since then, that a bridging visa that Mr Singh held ceased on 22 March 2020, and that Mr Singh is recorded in the relevant Departmental database as being offshore. The Court also observes that Ms Roeger has been instructed by an officer of the Department that according to the Department’s records, Mr Singh has not been granted any further visa, and is not currently the holder of a visa which would allow him to return lawfully to Australia.
In addition to those matters which are in Ms Roeger’s affidavit, the Court notes that a copy of a Notice of Discontinuance was forwarded to the chambers of Judge Wilson, but not filed,
in September of 2021. Mr Singh was given written instructions as to how to go about filing that Notice of Discontinuance, but did not file the Notice of Discontinuance.
In all of those circumstances where Mr Singh has evinced an intention to discontinue but not formally done so, and in circumstances where Mr Singh is overseas without a current visa affording him the right of re-entry to Australia, and where Mr Singh does not appear today,
the Court considers it appropriate that the matter be dismissed by reason of that
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) (“FCFCOA Rules”).
The Court will make an order to that effect that the originating application dated 23 January 2018 be dismissed for non-appearance pursuant to rule 13.06(1)(c) of the FCFCOA Rules.
The Court will also, as sought by the Minister, make an order that Mr Singh pay the Minister’s costs in the sum of $2,110 by 15 December 2021.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 17 November 2021
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