Sandhu v Minister for Immigration and Border Protection

(Revised from transcript) REASONS FOR JUDGMENT 1 On 25 November 2015, the Court ordered that an application for leave to appeal, which had been filed earlier by Mr Pritpal Singh Sandhu, be dismissed for non-appearance pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) and that Mr Sandhu pay the first respondent's costs. 2 The circumstances in which this order was made were set out in reasons for judgment delivered that day: see Sandhu v Minister for Immigration and Border Protection [2015] FCA 1321 (Sandhu No 1). In those reasons, the Court stated at [2]-[4]: The applicant did not appear in court when the application for leave to appeal was called on for hearing. He has not filed any written submissions prior to today's hearing. The applicant was informed of the hearing date, time and place by emails and letters sent to the addresses that he had provided to the Court. The hearing date was confirmed on at least two occasions by correspondence sent to his email address. It is sufficient to refer to a letter sent by the Court on 1 October 2015 headed "Important Information about your Application Hearing" which notified the applicant of the time, date and place of the hearing today and to a letter sent by Mr V Murano, a lawyer acting for the Minister, dated 10 September 2015, sent by post and email to the applicant, explaining to him the need to appear at court hearings, the possible consequences if he did not appear, and his responsibility to keep up to date with what might happen in relation to his matter by keeping in contact with the Court. I am confirmed in my view that the applicant was well aware of the hearing date and place by the fact that there was a telephone conversation between the applicant and a member of Chambers staff on 16 November 2015, some days ago, in which the applicant confirmed that he was aware that the hearing was listed for today, 25 November 2015, and that he understood that it was important that he attend. Unsuccessful attempts have been made today to contact the applicant on his mobile phone and to locate him in the surrounds of the Court. 3 Mr Sandhu has since filed another application dated 1 December 2015 in which he states: I want to accept my application. I want to reopen my student visa file. I want to court orders that I will not pay any costs to Immigrations. 4 Mr Sandhu's application was accompanied by an affidavit, in which he deposed that he "could not attend court date 25.11.15 because of my medical situation. I was sick and unhealthy". A pro forma medical certificate, stamped "Dr Maghu Ramachadran Provider No 4544691W, MyClinic Tarneit, 412 Derrimut Rd, Tarneit 3029, Ph: 87422088 …", was attached to this affidavit. The certificate was headed "Derrimut Road Health Clinic". It relevantly read: "This is to Certify that Pritpal Sandhu is suffering from a Medical condition". 5 Under these words there appears to be the word "Unwell", although the handwriting is difficult to read. Beneath this, the words "and is/was unfit for work / school" appear, and "unfit for work" and "school" are circled. Someone has written in a further option "/Court", which is also circled. The certificate is said to apply "from 24.11.15 to 25.11.15 inclusive". The certificate apparently bears a signature or initials, although precisely what they represent is impossible to discern. 6 Mr Sandhu did not attend the hearing today to support his application, but rather he called Chambers staff shortly before the hearing was scheduled to begin to say that he was again unwell and that he had a medical certificate to this effect. Chambers staff informed him that he should nonetheless attend the hearing and that the hearing might well proceed. When the matter was called on, however, Mr Sandhu was not present. Chambers staff subsequently called his mobile phone, but there was no answer. The hearing adjourned for a period to allow Mr Sandhu time to attend court if he had acted on the advice of Chambers staff. 7 Mr Sandhu was not present when the hearing resumed. The matter was called outside the courtroom, but no appearance by Mr Sandhu was announced. 8 The first respondent appeared by his legal representative, and applied to have Mr Sandhu's interlocutory application dismissed. 9 The Minister's representative referred me to provisions of the Federal Court Rules 2011 (Cth) (the Rules), including rr 35.33 and 5.23. In Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 (Lal), White J was satisfied that the Court had power to proceed to hear and determine an application of the same kind as Mr Sandhu's application, albeit in the absence of the applicant, pursuant to rr 17.04 and/or 35.32 or the inherent power of the Court: see Lal at [4]-[5]. 10 I am satisfied that the Court has power to hear and determine Mr Sandhu's application dated 1 December 2015, in Mr Sandhu's absence, under one or more of the provisions of the Rules referred to in [9] above and/or the Court's inherent power. 11 Further, I consider that it is proper to do so, in the circumstances of this case and bearing in mind the history of the matter. Mr Sandhu did not contact Chambers until just before the scheduled hearing. It is apparent that Mr Sandhu knows that his application was listed for hearing today and that he had not been granted an adjournment, if that is what he sought. Although he claims to have another medical certificate, he has not in fact provided any evidence to the court about the nature of his asserted illness. As stated below, Mr Sandhu has chosen not to appear at hearings in this and the Circuit Court on more than one occasion.