Sukhwinder Singh v Minister for Immigration and Citizenship
[2011] FCA 1377
•15 November 2011
FEDERAL COURT OF AUSTRALIA
Sukhwinder Singh v Minister for Immigration and Citizenship
[2011] FCA 1377
Citation: Sukhwinder Singh v Minister for Immigration and Citizenship [2011] FCA 1377 Appeal from: Singh v Minister for Immigration & Anor [2011] FMCA 494 Parties: SUKHWINDER SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 1219 of 2011 Judge: GRAY J Date of judgment: 15 November 2011 Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Date of hearing: 15 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the appellant: The appellant did not appear Solicitor for the respondents: Ms M Stone of DLA Piper Australia The second respondent submitted to any order the Court may make, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1219 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SUKHWINDER SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
15 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1219 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SUKHWINDER SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
15 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This appeal has been listed for hearing today. When the appeal was called on, the appellant was not present. Last Friday, 11 November 2011, the appellant sent a letter, which was forwarded by facsimile transmission to the Court, with a medical certificate attached. The medical certificate, which was given by a doctor in Pyrmont on 11 November 2011, indicated that the appellant “had an ijury [sic] on his forearm having severe pains reqwuiring [sic] eight stitches”. The certificate stated that the appellant was receiving medical treatment and would be “UNFIT TO CONTINUE his USUAL functions” from 11 November to 19 November 2011.
In the letter, the appellant provided a mobile telephone number and asked that he be contacted as to the outcome of his request as a matter of urgency. I am advised that several attempts were made by a member of the staff of the Court to contact the appellant on the telephone number, but there was no answer. The telephone calls went to a message service that involved only the leaving of a number for a return call, and not the leaving of any voice message. Eventually, on 14 November 2011, a member of the staff of the Court spoke to the appellant and advised him that he should be in attendance when his appeal was called on.
The material that was before the Migration Review Tribunal, the decision of which was the subject of an application to the Federal Magistrates Court of Australia for review, the result of which has led to this appeal, indicates that the appellant’s sister is in Sydney and was said to be looking after the appellant at the time of the Tribunal decision. A person identifying herself as the appellant’s sister has attended court today and has provided some explanation for the absence of the appellant. She says that he was involved in a motor vehicle accident on 11 November 2011. As well as the injury to his forearm, he has suffered an injury to his left leg that involves bruising, swelling and pain. She says that the appellant is capable of walking, but not for very far.
I asked the appellant’s sister where the accident had occurred and she told me that it was in Auburn. According to the interpreter who is also present, Auburn is approximately a half-hour drive from Pyrmont. The appellant’s sister says that her uncle drove the appellant from the scene of the accident to the doctor in Pyrmont and then drove him back to where he lives in Merrylands, not far from Parramatta. When I suggested to the appellant’s sister that it might have been possible to request the uncle to drive the appellant to court today, she agreed that that might have been possible.
I am not convinced that the appellant is unable to be present at court today. I am grateful to his sister for attending and giving an explanation. In the circumstances, however, I think it appropriate to dismiss the appeal, not on the merits, but on the basis that the appellant has failed to attend. This means that, if the appellant wishes to apply to the Court to set aside the judgment against him, if he can convince the Court that he really was prevented from being here today, and if he can persuade the Court that his appeal has some genuine merit, he would be entitled to set aside the interlocutory judgment I propose to give and to have his appeal heard and determined in the usual way.
As I have said, I have some doubts that he would be able to persuade the Court that he was truly unable to be here today. As a result of my reading of the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrates Court, as well as the grounds of the application to that court and the grounds of appeal, I have some difficulty seeing how the appellant could persuade the Court that his appeal was arguably capable of success. The determination of those issues is for another time, however, if at all.
The order I propose to make dismissing the appeal will be made pursuant to the power conferred on a judge by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). The orders I make are that:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 5 December 2011
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