Yadav v Minister for Immigration

[2017] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

YADAV v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 776

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no appearance by Applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Applicant: SAMPAT LAL YADAV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3059 of 2015

Judgment of: Judge Barnes

Hearing date: 10 April 2017

Delivered at: Sydney

Delivered on: 10 April 2017

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondents: Clayton Utz

ORDERS

1. There being no appearance by the Applicant, the application is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

3. The solicitors for the First Respondent notify the Applicant of the orders made today and of the effect of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by:

   (a)letters sent by registered mail to:

   (i)the Applicant’s address for service as it appears in the application for review; and

   (ii)the Applicant’s address for service as it appears in the letter to him of 3 April 2017 from the Minister’s solicitors; and

   (b)email sent to the email address provided in the application for review;

   by close of business today.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3059 of 2015

SAMPAT LAL YADAV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa.  The Tribunal dismissed the application for non-appearance under s.362B(1A)(b) of the Migration Act 1958 (Cth) (Act) and subsequently confirmed that decision in circumstances where the Applicant did not apply for reinstatement. 

2. The Applicant sought review of the confirmation decision of 3 November 2015.  I am told from the bar table that the Applicant attended the directions hearing before a registrar of the Court and also a callover on which date the matter was listed for hearing today.  The Applicant was not present at the time the matter was called today.  Nor is he present now some twenty-five minutes later. 

3. The solicitor for the Minister has also tendered a copy of a letter dated 3 April 2017 enclosing by way of service the First Respondent’s submissions and reminding the Applicant of the date, time and place of the hearing and that if he did not attend they were instructed to seek to have the matter dismissed with costs.  There is one complication in relation to that letter, although it is not in my view conclusive in relation to whether I should dismiss the matter for non-appearance as sought by the First Respondent.  In his application the Applicant gave an address for service in Australia that included a street spelt as “Hursley”.  I am told from the bar table that the only street in the suburb in question is in fact spelt “Horsley”.  This is the address to which the letter was sent. 

4. In any event the Applicant is not present today at the time, date and place specified at the callover.  In these circumstances I am prepared to dismiss the matter for non-appearance on the basis that the Applicant was notified at the callover (as well as by the Minister’s letter) of the date, time and place of the hearing.  However, having regard to the limited evidence before me, I also intend to order that the solicitors for the First Respondent notify the Applicant today of the orders made today by letters sent by registered mail to him at the address he provided in his application (that is, with the street name spelt with a “u”) and also the address in the letter enclosing by way of service the submissions (with the street spelt with an “o” rather than a “u”) and also by notification to the email address provided by the Applicant in the application for review, and that such letters should advise the Applicant not only of the orders made today but also of the effect of r.16.05 of the Federal Circuit Court Rules which enables the Court to vary or set aside a judgment made in the absence of a party. 

5. The Minister also seeks costs in the sum of $5,000.  I consider that that amount is fair and reasonable in the circumstances of this case. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 20 April 2017