Singh v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2)

[2021] FCA 850

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2021] FCA 850  

Appeal from:

Singh v Minister for Immigration & Anor [2020] FCCA 748

File number(s):

QUD 49 of 2020

Judgment of:

SC DERRINGTON J

Date of judgment:

23 July 2021

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time for leave to appeal – where appellant failed to appear on two occasions – application refused  

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Circuit Court Rules 2001 (Cth) r 44.12(2)

Federal Court Rules 2011 (Cth) r 35.13

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

10

Date of last submission/s:

21 July 2021

Date of hearing:

23 July 2021

Counsel for the Appellant:

No appearance

Solicitor for the First Respondent:

Ms Leith Helsdon of Sparke Helmore Lawyers

ORDER 1

QUD49 of 2020

BETWEEN:

SATVIR SINGH

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES, AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	SC DERRINGTON J
DATE OF ORDER:	23 JULY 2021

THE COURT ORDERS THAT:

1.The application for an extension of time to apply for leave to appeal be dismissed.

2.The appellant is to pay the first respondent’s costs of and incidental to the application, including the costs of both listings on 23 July 2021.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the Transcript)

SC DERRINGTON J

1. By Notice of Appeal filed on 24 February 2020, Mr Singh, sought to appeal against a decision of the Federal Circuit Court (FCC) which dismissed his application for review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision not to grant Mr Singh a student visa.

2. On 21 April 2020, the respondent filed a Notice of Objection to Competency of Appeal, objecting to the jurisdiction of this Court to hear the appeal on the grounds that the order made by the primary judge dismissing the application below was interlocutory, as provided for in r 44.12 (2) of the Federal Circuit Court Rules 2001 (Cth) (FCCR), and leave had not been granted to appeal the judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth)(FCA Act). Mr Singh’s Notice of Appeal was filed outside the time limit prescribed by r 35.13 of the Federal Court Rules 2011 (Cth) (FCR). Consequently, Mr Singh also seeks an extension of time in which to bring his application for leave to appeal.

3. The hearing of the application for an extension of time in which to bring his application for leave to appeal, and if granted, his application for leave to appeal, was listed for 10.15am this morning following an interlocutory application for an adjournment of the matter until September brought on Wednesday, 21 July 2021, and at which Mr Singh did appear, by Microsoft Teams. That application was dismissed, and the matter was adjourned until 10.15am today, 23 July 2021.

4. When the matter was brought on this morning, there was no appearance by Mr Singh. The first respondent’s solicitor was present in Court.

5. I made orders dismissing the application with costs.

6. Subsequently, approximately half an hour after the Court had adjourned, I was informed that the Registry had received communication from Mr Singh indicating that he had been waiting for 45 minutes to join the hearing. It is possible that he had tried to join the hearing by a Microsoft Teams link which was the one he had used for the interlocutory application on Wednesday. It appears that he made no attempt to join the link in respect of today’s hearing.

7. Upon learning of Mr Singh’s wish still to be heard, I set aside the orders made this morning and contact was attempted by email and telephone message to Mr Singh and to the first respondent’s solicitor indicating that I would relist the matter for 2.00pm this afternoon.

8. When the matter was called this afternoon at 2.00pm, there was still no appearance by Mr Singh, either in person as had been expected, or by the Microsoft Teams link that had been sent to Mr Singh in advance of the first listing today, or for the interlocutory application on Wednesday. The respondent’s solicitor was again present in Court.

9. In the circumstances, I dismiss the application for an extension of time seeking leave to appeal against the judgment of the FCC delivered on 3 February 2020.

10. There will be an order that the applicant is to pay the first respondent’s costs of and incidental to the application, including the costs of relisting the matter this afternoon.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.

Associate:

Dated:       23 July 2021