Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 909
•12 August 2024
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 909
Appeal from: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 246 File number: VID 255 of 2022 Judgment of: JACKSON J Date of judgment: 12 August 2024 Date of publication of reasons: 13 August 2024 Catchwords: MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review - no appearance by the appellants at the hearing of the appeal - application by first respondent for the appeal to be dismissed for default in appearance - appeal dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.75, Schedule 3 item 15
Migration Regulations 1994 (Cth) Schedule 2 cl 186.223
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 12 August 2024 Counsel for the Appellants: The appellants did not appear Counsel for the First Respondent: Mr R O'Shannessy Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 255 of 2022 BETWEEN: SARVJEET SINGH
First Appellant
DOLLY
Second Appellant
AYAAN SINGH VIRK
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
12 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed for default of appearance.
2.The appellants must pay the first respondent's costs of the appeal, fixed in the sum of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2). The primary judge dismissed an application by the appellants for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision by a delegate of the first respondent (the Minister) to refuse to grant to the appellants subclass 186 Employer Nomination (Permanent) (Class EN) visas. The Tribunal made that decision on 11 July 2019.
The appellants comprise a family unit, with the first appellant being the primary applicant for the Employer Nomination visas. The second appellant is his wife, and the third appellant is their child. The migration status of the second and third appellants (so far as the decision made in relation to the Employer Nomination visas goes) stands or falls with the appeal brought by the first appellant.
At the hearing of the appeal today the appellants have not appeared, including after the court officer called the matter outside the courtroom. The Minister is therefore moving for the appeal to be dismissed. The rule that governs a motion of that kind is r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), which is to the effect that if an appellant is absent when an appeal is called on for hearing, a respondent may apply to the Court for an order that the appeal be dismissed.
In the present case, the appellants have been made aware on multiple occasions of the date and time of the hearing of the appeal and the potential consequences for them if they did not appear at the hearing. Apart from the notice given by the registry of the Court when the appeal was listed, my Chambers corresponded by email with the parties on two occasions, once on 2 August 2024 and again on 8 August 2024. On both occasions, the parties were advised that if the appellants did not attend the hearing, that could result in the appeal being dismissed in their absence. There has been no reply from or on behalf of the appellants, and they gave no advance notice or explanation of their non-appearance today.
In those circumstances, I consider it appropriate in the interests of the administration of justice to exercise the Court's discretion to dismiss the appeal under r 36.75(1)(a)(i).
While it would not be appropriate in the circumstances to make any final determination as to the merits of the appeal, another factor relevant to the exercise of the discretion is that the sole ground of appeal does not raise any apparent error on the part of the primary judge.
The primary judge dismissed the application for judicial review on the basis that the first appellant did not satisfy an essential criterion for the grant of the visa, namely the criterion imposed by cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) that there had been a nomination by an employer that had been approved by the Minister. The ground of appeal does not appear to go to the correctness of the primary judge's decision or its basis, but rather makes contentions about the Tribunal having failed to properly consider unspecified evidence.
However, an appeal to this Court is a procedure for the correction of any error on the part of the court below. The absence of any error identified in the notice of appeal on the part of the primary judge (as distinct from the Tribunal) would be likely to be fatal at any final hearing of the appeal (in the absence of a successful application to rely on grounds not put before the primary judge).
For these reasons, I consider it appropriate to exercise the discretion under r 36.75(1)(a)(i) of the Federal Court Rules to dismiss the appeal, on the basis that the appellants have not appeared at the hearing. The appellants will have liberty to apply under r 36.75(2) to vary or set aside the order dismissing the appeal.
The Minister seeks his costs of the appeal, fixed in the sum of $4,000. That is a reasonable amount, in view of item 15.2 of Schedule 3 to the Federal Court Rules, which provides that $8,323 can be claimed in a short form bill for an appeal under the Migration Act that is dismissed after a hearing. The lower amount sought appropriately takes account of the fact that today's hearing has been relatively short due to the appellants' non-appearance. A costs order as sought will be made.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 13 August 2024
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