Singh v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent of and in connection with the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 The appellant has appealed from a judgment of the Federal Circuit Court. The Federal Circuit Court ordered that the appellant's application for judicial review of a decision of the second respondent (the 'Tribunal') be dismissed with costs. The Tribunal had affirmed a decision of a delegate of the first respondent (the 'Minister') to refuse to grant the appellant a Skilled (Residence) (Class VB) visa, subclass 885 (Skilled - Independent) (a 'skilled visa'). 2 On 1 April 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. 3 On 30 October 2017, the Federal Circuit Court heard and determined the matter at first instance. The Court ordered that the application be dismissed with costs. 4 On 16 November 2017, the appellant appealed to the Federal Court from the judgment of the Federal Circuit Court. 5 I do not need to rehearse the arguments of the parties other than to say that on the written material before me it seems that the Federal Circuit Court did not fall into error. However, this is not a concluded view, as I have not had the benefit of any argument by the appellant, who has not appeared, although having the opportunity to appear before the Court today. 6 This appeal was called on a little after 10.15 am this morning, which was the designated time the appeal was to be heard. The appellant has not appeared. The Minister makes application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011 (Cth) that the appeal be dismissed on the basis that the appellant has failed to attend a hearing relating to the appeal. 7 I am satisfied that the appellant knew that the hearing would proceed today at 10.15am in this Court. That satisfaction arises because of communications that have taken place between the appellant and the Court, the last one being from the Court to the parties on 24 May 2018 at 3.12pm, indicating that the appeal would proceed at 10.15am on Friday, 25 May 2018. 8 In correspondence from the appellant on 24 May 2018, the appellant sought an adjournment, stating as follows: I still wish to apply for adjournment because I am not able to attend this hearing at this stage because of my health issues, Actually I went to Nadi, Fiji last week & back on Tuesday night and maybe I ate something wrong over there and because of that I started suffering from (Medical issues) abdominal pain and also Diarrhea. I am still suffering same problem and also very bad vomiting and now planning to return (Emergency department) Sunshine hospital again. I hope that you will try to understand my problem. I'm sending you my Fiji ticket and hospital letter. Please find the attachments below. 9 The appellant also requested an adjournment of the hearing in other correspondence of 24 May 2018, where he wrote: I am Avtar Singh (07/09/83) from 4B Sayvel Close, Hillside Victoria and my federal court proceedings no: VID1250 of 2017. I wish to make a request for an adjournment of my hearing because the matter is listed on 25 May 2018 at 10:15 am (tomorrow) at Federal court of Australia. But unfortunately I am not able to attend my hearing at this stage because I am suffering from a medical condition and currently receiving a treatment at Sunshine Hospital and circumstances are beyond of my control at this time and I am also sending you my all documents regarding that please find all the attachments below. But I promise that I would definitely attend my next hearing and will explain my side on the matter. This is my humble request that please try to understand my situation at this occasion and if you could please adjourn the hearing on 25 may 2018 and rearrange the next one, I will be very grateful for your cooperation on this matter. If you need more information please let me about that. Once again I will really appreciate if you could please help me on this matter. 10 Attached to that correspondence was a medical certificate which merely indicated that the appellant was unfit for work or study for three days and he was receiving medical treatment from 23 May 2018 to Friday, 25 May 2018. Another attachment indicated that the appellant attended the Emergency Department at Western Health at the Sunshine Hospital, but that he was discharged and no disease was found. 11 I should indicate that none of this material in support of the adjournment was verified in an appropriate way. After receipt of this material, the appellant was informed by the Court on 24 May 2018 that, if he wished to make an application for an adjournment, then appropriate material should be before the Court at the hearing on 25 May 2018. 12 There is no appropriate material which the Court could or should act upon as an excuse for non-attendance today by the appellant. In these circumstances, the Court will exercise the power it has on the application of the Minister to dismiss the appeal on the basis of the failure of the appellant to attend the hearing. 13 The order of the Court will be: (1) The appeal be dismissed. (2) The appellant pay the costs of the first respondent of and in connection with the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.